The history of the Supreme court of the state of Texas : with biographies of the chief and associate justices

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THE HISTORY OF THE
SUPREME COURT OF
THE STATE OF TEXAS

WITH BIOGRAPHIES OF THE
CHIEF Mid ASSOCIATE JUSTICES

X

By J. H. DAVENPORT

PUBLISHED BY

SOUTHERN LAW BOOK PUBLISHERS
AUSTIN, TEXAS

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/$ZST}74,

COPYRIGHT 1917

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PKEFACE.

This outline of the history of the Supreme Court
of Texas is presented to the public in the belief
that it will prove entertaining and instructive to the
professional and general reader as well.

Cases cited and quoted in the work were selected
because of their general or historical interest, or
their influence upon the history of our judiciary,
irrespective of their status as precedents. No claim
is made that they comprehend all, or even a ma-
jority, of the most important cases decided by the
court. The circumstance that the professional
reader is familiar with the leading cases, and that
the general reader is not interested in cases involv-
ing only dry discussions of principles of law, as,
also, the obvious fact that citation of all the im-
portant cases adjudicated by the court would have
extended the volume and scope of the work beyond
reasonable bounds, were considerations which im-
pelled the writer to restrict citations to cases herein
presented.

Liberal quotations from the court's opinions were
necessitated by a desire to give the general reader,
having no access to the reports, a comprehensive
view of the basis of the enduring reputation of the
distinguished judges who wrote them, and the
writer's conviction that no mere synopsis of the
opinions could do justice to the learned jurists who
formulated them.

Pkeface

It is believed that the work possesses value to the
legal profession as a comprehensive compilation of
important data relating to the Supreme Court and
its justices, contained in numerous volumes of the
reports and in consequence difficult of access.

To the law student, at the threshold of his pro-
fessional career, the work should possess a special
interest and value in its disclosure of his future field
of action, and the splendid achievements of distin-
guished lawyers who have won renown in the great-
est sphere of human endeavor.

The writer is pleased to tender his acknowledg-
ments to Hon. T. H. McGregor of the Austin Bar,
Hon. C. Klaerner, State Librarian, and Mr. L. K.
Smoot, Mr. Sinclair Moreland and Miss Marian
Darwin, his accommodating assistants, for appre-
ciated courtesies extended in the course of his work.

Conscious of its imperfections, the writer submits
the work to the approval of an intelligent and gen-
erous public, with no other regret than that incident
to a consciousness of his inability to do full justice
to the august tribunal of which it treats. If the
work shall inspire in its readers the profound re-
spect and admiration which the writer feels for that
great court and the eminent jurists who have adorned
it during the eight decades of its existence, he will be
recompensed for labors devoted to the story of the
most splendid achievements connected with the in-
comparable and imperishable history of Texas.

Austin, Texas, February, 1917.

J. H. D.

CHAPTER I.

r

1824-1846.

Supreme Court of Coahuila and Texas — Limited Powers —
Superior Judicial Court of the Province of Texas — Qualifi-
cations of Superior Judge — Ceremonies in Convening Court —
"Dress of Etiquette" for "Solemn Occasions" — Thomas
Jefferson Chambers, Superior Judge — Sketch of Judge
Chambers — Address to the People of Texas — Rising Tide
of Revolution — A Courtless Judge — Creation and Organiza-
tion of Supreme Court of the Republic of Texas — James
Collingsworth, Chief Justice — Sketch of Justice Collings-
worth — John Birdsall Succeeds Chief Justice Collingsworth —
Thomas Jefferson Rusk Succeeds Chief Justice Birdsall —
Sketch of Justice Rusk — John Hemphill Succeeds Chief
Justice Rusk — Sketch of Justice Hemphill — Associate Jus-
tices of the Supreme Court of the Republic — Sketches of
Justices Baylor, Franklin, Hansford, Morris, Robinson,
Williamson, "Wheeler, Patrick, and Ochiltree — Scott vs.
Maynard — Construction of Spanish Law Defining Commu-
nity Property — "Compound of Error and Mixture of Juris-
prudence" — Morton vs. Gerden — Judicial Pean to the Con-
stitution — "Amidst and Above the Storm" — Whiting vs.
Turley— "Chancelling It."

Following the revolution in which it won its in-
dependence of Spain, Mexico, through its sovereign
constituent Congress, in defining the five internal
States which should constitute the Mexican Confed-
eration, declared that the provinces of Nuevo Leon,
Coahuila, and Texas should constitute the internal
State of the east. The constitution of the Confed-
eration, adopted October 24, 1824, provided that the
judicial power of each of the internal States should

2 The Supkeme Cotjbt of Texas

be exercised by such tribunals as should be created
and established by their respective constitutions.
In pursuance of the authority conferred, the State
of Coahuila and Texas, by its constitution adopted
in 1827, created a supreme State tribunal, to be
located at its capital, composed of such magistrates
as should be provided by law, divided into three
"halls," the powers and jurisdiction of which were
denned. The qualifications of magistrates were, that
they should be citizens in the exercise of their rights,
twenty-five years of age, natives of the Eepublic,
and upright, enlightened lawyers. They were made
appointive by Congress on nomination of the Gov-
ernor, and were to receive a competent salary to be
designated by law. They were not subject to re-
moval from office except for legally established
cause; were held responsible for their proceedings
in the discharge of their functions, and could be
accused therefor before Congress by "any individual
of the people whatever."

In so far as is known no record exists of the ju-
dicial labors of this court, and, in consequence, noth-
ing is known of the personnel of its Justices, or the
abilities which they brought to bear in the discharge
of their official duties. The value of decisions of the
court as precedents probably was seriously impaired
by its adherence to the following restriction upon the
exercise of its important functions, which serve as
an enlightening example of primitive conceptions of
an efficient judiciary existing in the minds of the
framers of the constitution: "The tribunals and
courts of justice, being authorized solely for applying
the laws, shall never interpret the same, or suspend

The Supreme Count of Texas 3

their execution." 1 The difficulties necessarily inci-
dent to "applying" laws which judges were ex-
pressly inhibited from construing or nullifying, will
suggest themselves to the professional mind as being
fatally inconsistent with an effective and conscien-
tious administration of the law.

By an act of the Congress of Coahuila and
Texas, approved April 17, 1834, the province of
Texas was made a separate judicial circuit, compris-
ing the jurisdiction of a court created and denomi-
nated "The Superior Judicial Court of Texas." The
circuit was divided into three districts, designated as
the three departments of Texas. It was provided
that the Supreme Court should be composed of one
judge, one secretary and one sheriff for each district,
and in criminal cases, a jury and one prosecuting
attorney. The Superior Judge was required to be
a citizen in the full exercise of rights, over twenty-
five years of age, a lawyer by profession, and a man
of probity and science. He was appointive by Con-
gress, on nomination by the Governor, en terna, and
could not be removed from office except for cause
legally established, and his salary was fixed at $3,000
per annum. Formalities required at the opening
of the Superior Court were, that the sheriffs and
constables should be seated on the right of the Su-
perior Judge; the primary commissioners on the
left ; the prosecuting attorney, the secretary and the
lawyers in front, around a table; and that the au-
dience should remain standing. The Superior Judge
was admonished to open court "by pronouncing a

iConstitution Coahuila and Texas. Art. Ill, Sec. 172.

4 The Sttpbeme Cottkt or Texas

discourse analogous to the circumstances, directed
principally to the instruction of the judges and
officers of justice in the discharge of their respect-
ive duties." The act specified particularly that "the
dress of etiquette of the Superior Judge shall be
black or dark blue, and a white sash with gold tas-
sels; and this dress shall be used on all solemn
occasions." A novel and interesting feature of the
act was the provision that salaries established by it
should be paid the first year "with vacant lands sit-
uated within the judicial circuit, and at the rate of
$100 for each sitio;" from which it appears that the
"internal state of the east," like many of its citizens,
was "land poor" at that period of its sovereign ex-
istence. This act, prescribing trial by jury, and
other safeguards of the rights of accused persons and
litigants, exhibits a more enlightened regard for the
liberties of the people than the despotic government
of Mexico therefore had manifested, a recognition
probably due to enlightened counsels and sugges-
tions of the pioneer patriot and statesman selected
as Judge of the court created by its provisions.

Thomas Jefferson Chambers was appointed Su-
perior Judge of the Superior Judicial Court of
Texas. A native of Orange County, Virginia, he
emigrated to Mexico City in 1826, where he devoted
three years to the study of the language, laws and
institutions of Mexico, and thereafter removed to
the province of Texas. He is described by a con-
temporary as "gifted with talents of a high order,
whose persuasive manners soon gained the confidence
of the Government of the State of Coahuila and
Texas, which, added to his devotion to free insti-

The Supreme Court of Texas 5

tutions, enabled him to do much for her in the days
of her infancy." 1 In 1829 he was appointed Sur-
veyor General of the province of Texas, and, in
conjunction with Antonio Padilla, who for a brief
period was Land Commissioner for Eastern Texas,
obtained an empressario contract for introducing
800 families of colonists to that section. During
violent disorders precipitated by the removal of
the capital of the State of Coahuila and Texas from
Saltillo to Monclova, which was bitterly and vigor-
ously opposed by certain factions in the province of
Texas, and a disgraceful armed conflict between
followers of rival claimants of the office of Gover-
nor of the State, constitutional government was sus-
pended, resulting in chaotic conditions which ren-
dered it impossible for Judge Chambers to organize
the court in which he had been selected to preside;
and in consequence he was never permitted to as-
sume the duties of his office. As witnesses but non-
participants in those violent disorders, Jose Vasquez
and Oliver Jones, Texas representatives in the Con-
gress of Coahuila and Texas, and Judge Chambers
were so impressed by the alarming trend of public
affairs that, on September 1, 1834, they issued an
address to the people of Texas detailing the chaotic
condition of their affairs, accompanied by the pro-
posal that a congress should be convened at Bexar
on the 15th of November following, to consider the
political situation confronting their own department
of the State, "and, if necessary, form a provisional
government." 2

iSketch of T. J. Chambers, Galveston, 1853.
2Yoakum's History of Texas, Vol. 1, pp. 323-4.

6 The Stjpkeme Court of Texas

This address possesses historical interest as being
the first public announcement of the approaching
separation of the province of Texas from Mexico,
subsequently consummated by the revolution of 1836.
Judge Chambers rendered valuable service to Texas
during the war of independence which largely con-
tributed to its success. He proposed a loan of $10,000
to the provisional government, with a tender of his
services to visit the United States to procure volun-
teers and munitions for the Texas army. These
offers were accepted and he was commissioned Ma-
jor-General of reserves by the Executive Council.
How faithfully and efficiently he discharged the
duties of his position is shown in his report to Con-
gress, dated June 3, 1837, disclosing that he had
dispatched 1,915 volunteers to Texas, and had ex-
pended $23,621 of his private funds on behalf of
the Texas army. Later he retired from public life,
settling in Chambers County, Texas, which he rep-
resented in the Secession Convention in 1861. There-
after he was an unsuccessful candidate for Governor
of Texas. He was killed while sitting in his house,
by an assassin whose identity was never discovered. 1

Although Judge Chambers was prevented from
exercising the functions of the office of Superior
Judge of the Superior Judicial Court of the province
of Texas by disorders presaging the Texas revolu-
tion, and notwithstanding he was appointed to the
position by the Mexican government, whose author-
ity extended over the province, the circumstance that
the jurisdiction of the court in which he was selected

iThrall's History of Texas, Vol. 2, pp. 535-526.

The Supbeme Court of Texas 7

to preside included that territory alone, appears to
entitle him to the honor and distinction of having
been the first Chief Justice of Texas.

The creation of the Supreme Court of the Repub-
lic of Texas was authorized and directed by the con-
stitution adopted at Washington, Texas, March 17,
1836, which provided that the judicial powers of the
government should be vested in one Supreme Court,
and such inferior courts as Congress should from
time to time ordain and establish. It was provided
that the court should consist of a chief justice and
associate justices composed of district judges, a ma-
jority of whom, with the chief justice, should consti-
tute a quorum, who should hold their offices for four
years, be eligible to re-election, and should at stated
periods receive for their services a compensation
which should not be increased or diminished during
the period for which they were elected. It provided
that the State should be divided into convenient
judicial districts, not less than three nor more than
eight, and for the appointment of a judge for each
district, who should be a resident of the same; that
the jurisdiction conferred upon the Supreme Court
should be appellate, only, and conclusive within the
limits of the Republic, and that it should hold an-
nual sessions at such places as should be designated
by law. Judges of the court were made elective by
a joint ballot of the two houses of Congress. Under
the system thus created district judges, in addition
to their duties as trial judges, were also Associate
Justices of the Supreme Court. It was directed that
Congress should, as early as possible, introduce by
statute, the common law of England, with such

8 The Stjpkeme Court of Texas

modifications as "our circumstances, in their judg-
ment, may require," and that in all criminal cases
the common law should be the rule of action.

In pursuance of the authority conferred by the
constitution, the Congress of the Republic, by an act
approved December 15, 1836, provided that there
should be established in the Republic a court to be
styled the Supreme Court of the Republic of Texas,
to consist of one Supreme Judge, to be styled the
Chief Justice, who should be elected by joint ballot
of both houses of Congress, and such judges as
should be elected judges of the district courts, who
should hold their offices for the period prescribed by
the constitution. The salary of the Chief Justice
was fixed at $5,000 per annum, payable semi-an-
nually. Annual sessions of the court were required
to be held at the seat of government on the first
Monday in December. It was given jurisdiction
to hear and determine all manner of pleas, plaints,
motions, causes and controversies, civil and criminal,
which should come before it from any court in the
Republic by appeal or other process which should
be cognizable in said court according to the consti-
tution and laws of the Republic, but that no appeal
should be granted, nor should any cause be removed
to the Supreme Court in any manner whatsoever
until after final judgment or decree in the court
below, except in cases particularly prescribed by
law. By an act of Congress approved December 22,
1836, the State was divided into four judicial dis-
tricts, a judge for each district being required to be
elected by joint ballot of the two houses of Congress, 1

iLaws of the Eepublic, Vol. 1, p. 198.

The Supreme Court op Texas 9

two additional districts being created by subsequent
enactment. 1

James Collingsworth was the first Chief Justice
of the Supreme Court of the Republic of Texas. He
was a native of Tennessee, and held the office of
United States District Attorney in that State prior
to his removal to Texas. He served with distinction
as a member of the Executive Council during the
Texas revolution, being chairman of the military
committee to whom reports of the commander-in-
chief in the field were transmitted. Collingsworth
received honorable mention in the official report of
Thomas J. Rusk, Secretary of "War, to President
Burnet, written on the field of San Jacinto, April
22, 1836, as follows: "While I do justice to all in
expressing my high admiration of the bravery and
gallant conduct of both officers and men, I hope I
may be indulged in the expression of my highest
approbation of the chivalrous conduct of Major
James Collingsworth in almost every part of the
engagement." After serving as Secretary of State
for a brief period in 1836, Mr. Collingsworth and
Peter W. Grayson were commissioned on the 30th of
May of that year to proceed to Washington to ask
the intervention of the United States in procuring
the recognition by Mexico of the independence of
Texas, and to use their best efforts to obtain a like
recognition by the former country. In 1838 Col-
lingsworth was appointed Chief Justice of the Re-
public of Texas. Shortly after his appointment he
became a candidate for President of the Republic,

iLaws of the Eepublic, 4 Cong., pp. 176-177.

10 The Supreme Court of Texas

his opponents being Mirabeau B. Lamar and Peter
W. Grayson, in a campaign which was exceedingly
bitter and abounding in the harshest personalities.
Just prior to the election Collingsworth committed
suicide by throwing himself from the deck of a
steamer into Galveston Bay, while at about the
same date, Peter W. Grayson ended his life by his
own hands in an adjoining State. 1

John Birdsall was elected Chief Justice of the
court to succeed Justice Collingsworth. There is
no mention of Judge Birdsall by contemporaries or
historians of the period, or data obtainable as the
basis of a sketch of his life. No sessions of the
court were held during the official terms of Collings-
worth and Birdsall, an omission probably due to
unsettled conditions at the close of the revolution.

Thomas Jefferson Rusk was appointed Chief Jus-
tice of the Supreme Court of the Republic by the
Congress of 1838-9. He was born in Pendleton
District, South Carolina, December 5, 1803. His
father was a tenant of John C. Calhoun, a circum-
stance which fortunately resulted in attracting the
attention of that distinguished statesman to young
Rusk. Through the kindly interest of that powerful
patron he secured a position with William Gresham,

*0f the character and attainments of Judge Collingsworth, the most
accurate of historians says :

"Among the distinguished dead of this year (1838jj may be mentioned
James Collingsworth. . . . Collingsworth was the first Chief Justice
of the Supreme Court of the Eepublic. He was a man of fine talents,
great urbanity, and a devoted and valuable friend to Texas in her
struggle. He had a pleasant wit, was a most admirable companion,
and of scrupulous integrity. He had emigrated to Texas to avoid a
false habit, which unfortunately pursued him to a premature grave." —
Yoakum's History of Texas, Vol. 2, p. 350.

The Supbeme Court of Texas 11

clerk of the Pendleton District, which not only sup-
plied sufficient means for his support, but also fa-
cilities for the study of law, which he pursued with
such diligence that he was shortly admitted to the
bar. Thereafter he removed to Clarksville, Haber-
sham County, Georgia, where he began the practice
of law tin 1832, in his twenty-ninth year. Mr. Rusk
was a leading member of his profession in the coun-
ties known as the "Gold Region." Seized with the
fever of speculation then rife in that section of the
State, he invested extensively in the stock of a land
company, the managers of which absconded with
the revenues and assets of the corporation, leaving
him penniless and all but hopelessly involved in debt.
Pursuing the fugitives, he overhauled them west of
the Sabine River, only to make the discouraging dis-
covery that they had squandered their loot in gam-
bling and riotous living. Proceeding thence to Na-
cogdoches, Texas, he found the inhabitants of that
town greatly excited over reports of depredations
and atrocities committed upon Americans by Mex-
ican brigands in the west. Mounting the platform at
an indignation meeting he delivered a vigorous, elo-
quent appeal to the assemblage, in which he volun-
teered to become one of a company to march to the
rescue of his countrymen. Immediately responding
to his suggestion, a company was organized and the
speaker named as commander to lead it to the scene
of the disorders. In the same year, as secretary of
a vigilance committee, he formulated a vigorous pro-
test against the further introduction of Indians into
Texas from the United States. In 1835 he was ap-
pointed commissary of the Texas army by the Ex-

12 The Supreme Court or Texas

ecutive Council. He was in active service before
the walls of San Antonio during the siege of that
city, where, during several attempts to draw the
enemy from his fortified position, at the head of
forty cavalrymen, he took position in the open within
300 yards of his stronghold and within easy range
of a battery of six-pounders, where he remained
for twenty minutes. Following the first success of
the Texas army at San Antonio, Thomas J. Rusk
and J. W. Fannin were co mmi ssioned by the Ex-
ecutive Council to procure men and munitions.
March 16, 1836, Mr. Rusk was elected Secretary of
War. Issuing an appeal to citizens of Texas to
march to the defense of the country, he set out from
Harrisburg to join the army. He was welcomed in
camp as the ablest, safest counselor of Texas in the
pending unequal struggle for her independence. Two
days before the memorable, decisive and history-
making battle of San Jacinto, Secretary Rusk issued
a stirring address to the people of Texas. 1

i"A few more hours," said he, "will decide the fate of our army ; and
what an astonishing 1 fact it is that, at the very moment when the fate
of your wives, your children, your honors, your country, and all that
is dear to a freeman are suspended on the issue of one battle, not
one-fourth of the people (men) of Texas are in the army! Are you
Americans? Are you freemen? If you are, prove your blood and birth
by rallying at once to your country's standard. Your general is at
the head of a brave and chivalrous band, and throws himself, sword
in hand, into the breach to save his country, and vindicate her rights.
Enthusiasm prevails in the army; but I look around and see that
many, very many, whom I anticipated would be the first in the field,
are not here. Rise at once, concentrate and march to the field! — a.
vigorous effort, and the country is safe ! A different course disgraces
and ruins you ; and what is life worth with the loss of liberty? May
I never survive it !"

The heroic conduct of Secretary Rusk in the battle of San Jacinto
was excelled by none who participated in that important engagement,

The Supreme Court of Texas 13

General Houston's wound necessitated his resig-
nation of the command of the army, when the en-
tire army, President Burnet and his cabinet in-
cluded, united in an urgent request to Secretary
Rusk to assume the office of Commander-in-Chief,
with the rank of Brigadier-General, to which he
finally assented. In the fall of 1836 he was ap-
pointed a member of President Houston's cabinet,
in which he served but a few weeks, his private af-
fairs necessitating his entire attention at the time.
In 1837 he was elected to the Second Congress of
the Republic, from Nacogdoches, serving in that po-
sition several successive terms. In 1838 he refused
the earnest solicitations of his friends to offer for
the office of President of the Republic, preferring
the election of General Mirabeau B. Lamar to that
position. In August of that year he suppressed a
rebellion of Mexicans and Indians at Nacogdoches
and vicinity, while he devoted the ensuing summer
to a successful campaign against the enemies of the
Republic. In 1843 he was elected Major-General
of militia. In March, 1846, the First Texas Legisla-
ture elected him United States Senator, in which
position he served with marked distinction. He was

while to the courage and the 'wisdom of his instant decision was due
the victory. "While the Texas columns were advancing 1 towards the
enemy's front the General-in-Chief received a wound in his ankle, and
immediately called upon the troops to halt, but Rusk, perceiving 1 that
to halt at that moment would be certain ruin, rode forward and cried,
'Push on boys, push on !' and they did push on under the lead of the
gallant Secretary, shouting — 'Remember the iAJamo! Remember Go-
liad !' And they won a victory in one hour which secured freedom
and prosperity to an empire. It was the mission of Rusk to win the
laurels of that day, and for the other men to wear them." — Sketch of
T. J. Rusk, Texas Almanac (1856), p. 106.

14 The Supreme Cotjbt of Texas

chairman of the Postal Committee of the Senate
for several terms, and is said to have refused the
office of Postmaster-General, tendered him by Pres-
ident Buchanan. He also served one term as pres-
ident pro tern of the Senate. Of the death of this
distinguished Texas citizen, soldier, patroit, and
statesman, the eulogy pronounced in the House of
Representatives of Texas by Chief Justice Hemp-
hill, says:

"The manner of his death is the only shade on
the grand and brilliant picture of his long, glorious
and useful life. He had been weak and sick for some
time. The death of his wife had been to him a
crushing affliction. His grief, acting through the
disordered state of his physical system, produced
such an increasing degree of gloom and melancholy
as to finally produce the catastrophe which has filled
the country with lamentation and woe. Let tears
of sympathy flow for the sudden collapse of one of
the finest mental organizations, striking as it did
from his country forever one of its most illustrious
and venerable patriots and statesmen."

Senator Rusk died by his own hands at Washing-
ton, D. C, according to one authority, 1 and at Nacog-
doches, Texas, as recorded by another. 2

The decisions of the Supreme Court of the Re-
public are contained in Dallam's Report, which com-'
prehends all written opinions rendered by its judges
from 1840 to 1844, inclusive. Mve brief opinions
in causes of minor importance, decided at the Jan-

iLynch's Bench, and Bar, p. 68.
^Williams' War of Independence.

The Supkeme Court of Texas 15

uary Term, 1840, represent all that has been pre-
served of the judicial labors of Chief Justice Rusk.
In these no issues of sufficient moment were involved
to disclose the professional learning or judicial
acumen of Judge Rusk, and, in consequence, they
are wholly insufficient to serve as a basis upon
which to predicate an intelligent or fair estimate of
his judicial abilities. "They do not display great
learning," confesses a contemporary biographer,
"but then it is to be recollected that during the first
two terms of the Supreme Court of the United
States all the judges did not write half so much.
The Chief Justice proved himself adequate to the
times; if, in his sententious opinions he quoted no
authorities, he displayed more wisdom than some
of his fellows who quoted from schools and systems
which had never been introduced into Texas." 1 With
equal propriety and like truth it might have been
added that in the infancy of the Republic there were
practically no authorities accessible to the court.

John Hemphill was appointed Chief Justice of the
Supreme Court of the Republic, in 1840, to succeed
Chief Justice Rusk, who resigned at the end of the
January Term of the court of that year. Judge
Hemphill was Associate Justice of the court at the
time of his promotion. He was one of that exalted
trio of Justices which afterwards constituted the first
Supreme Court of Texas — Hemphill, Lipscomb and
Wheeler — the greatest tribunal, with the possible
exception of the Supreme Court of the United
States, as presided over by Chief Justice Marshall,

i"The State Times," quoted in Texas Almanac (1858), p. 108.

16 The Stjpkeme Court op Texas

that has illumined the most splendid pages of the his-
tory of an enlightened judiciary. Judge Hemphill
was a lawyer of exceptional professional ability and
scholarly attainments. He is the author of many of
those able opinions which contributed so much to the
enduring reputation of the Supreme Court of Texas
and to that admiration and respect accorded it in
all jurisdictions. Justice Hemphill was a native
of South Carolina. He graduated from Jef-
ferson College. In 1826 he entered the practice of
law. Emigrating to Texas at an early period of its
history, he was appointed one of the first district
judges of the Eepublic. In 1842 he was Adjutant
General of the Republic, and accompanied General
Somerville on the ill-starred Mier expedition. He
was a delegate to the convention of 1845, which ac-
cepted the ordinance of annexation, and a member
of the constitutional convention which adopted the
constitution of 1845. In 1858 he was elected United
States Senator from Texas. When Texas seceded
from the Union, he retired from the Senate and was
elected delegate to the Montgomery convention. He
was thereafter elected to the Confederate Congress.
Death closed his long and useful career at Richmond,
Virginia, in 1862.

District Judges of the Republic, who from time to
time were Associate Justices of the Supreme Court
by virtue of their offices, were R. E. B. Baylor, Ed-
ward T. Branch, Shelby Corzine, Ezekiel W. Cullen,
Henry W. Fontaine, Benjamin C. Franklin, John M.
Hansford, Anderson Hutchinson, John Hemphill,
Richard Morris, John T. Mills, M. P. Norton, Will-
iam B. Ochiltree, James Robinson, Richardson A.

The Supeeme Court or Texas 17

Scurry, John Scott, Anthony B. Shelby, George W.
Terrill, E. M. Williamson, R. T. Wheeler, Thomas
Johnson, William J. Jones, John B. Jones, William
E. Jones, and Patrick C. Jack. As disclosed in pub-
lished decisions of the court, only a limited number
of these actively participated in the labors of the
court, a fact substantiated by an act of the Congress
of the Republic penalizing that omission.

Judge R. E. B. Baylor was a native of Kentucky.
In early life he removed to Alabama, where he once
represented his district in the United States Con-
gress. Emigrating to Texas in the days of the Re-
public he was appointed district judge, to which
office he was reappointed after annexation, and in
which he served until advanced age necessitated his
retirement. He was a member of the Constitutional
Convention of 1845. Baylor University was named
in his honor. He died near Independence, Washing-
ton County, in December, 1872.

Judge Benjamin C. Franklin was a member of
Deaf Smith's Spy Company in 1836. As a private
soldier he fought in the battle of San Jacinto. He
was afterward appointed district judge by President
Burnet. Judge Franklin was one of the first settlers
on Galveston Island. He represented Galveston
County in the State Legislature, and was elected to
the State Senate from the district including that
county, in 1873, but died before the convening of the
Legislature.

Judge John M. Hansford served in the Congress
of the Republic as a member from Shelby County,
in 1838, and was Speaker of the House. He died
in 1843.

18 The Supreme Court op Texas

Judge Richard Morris was born in Hanover
County, Virginia, December 27, 1815. He received
preparatory instruction in Burke High School, Rich-
mond, and thereafter took a two years' academic
course in the University of Virginia. He studied
law in his father's office, attended the law depart-
ment of the University for one session, and was ad-
mitted to the bar. In 1838 he removed to Texas,
engaging in the practice of law at Houston. There-
after he removed to Galveston, where he was ap-
pointed judge of the First Judicial District, and
later judge of the Criminal District Court of the
Galveston and Harris district. He died of yellow
fever, August 14, 1844.

James W. Robinson was a native of Ohio. In
1835 he was a leading member of the Consultation.
Upon the organization of the provisional govern-
ment of Texas he was elected Lieutenant Governor.
When, as the culmination of a violent clash between
Governor Smith and the Executive Council, Smith
was expeditiously deposed, Robinson was named as
his successor, but Governor Smith peremptorily re-
fused to vacate the office or surrender its insignia. 1

iThe insignia was a brass button on his coat, which happened to be
a star, and for want of a seal, was used to make the impression upon
public documents dispatched to the United States. That brass button
gave birth to the single star, emblem of the new Republic — Thrall's
History of Texas, Part 2, p. 605.

A number of anecdotes are current among the legal fraternity of
which Judge Robinson was the occasion. It isi told that on one occa-
sion, when holding court in Houston, a man had been convicted of a
crime for which the penalty was thirty-nine lashes. A motion was
duly made and entered for a new trial, which the judge promised to
attend to the next morning. In the meantime he directed the sheriff
to whip the culprit and turn him loose. At the opening of court in

The Supreme Court of Texas 19

Robinson fought as a private soldier in the battle
of San Jacinto. When serving as district judge, lie
resigned his office rather than preside at the trial
of a personal friend charged with a capital offense.
In September, 1842, he was one of many members of
the court taken prisoner by General Wool at San
Antonio. From his prison in Mexico, Robinson wrote
General Santa Anna, suggesting terms of an agree-
ment between Texas and Mexico, was released by the
latter and dispatched with letters to General Hous-
ton, which eventually effected an armistice. In 1849
Robinson emigrated to California, but being dis-
satisfied with conditions there, was returning to
Texas when he died at San Diego, in 1853.

Robert M. Williamson — "Three-Legged Willie" —
was a native of Georgia, where he was born in 1806.
Afflicted in his youth by a white swelling which per-
manently stiffened one of his knees, the use of a
wooden leg, necessitated by that misfortune, sug-
gested the nickname by which he was familiarly
known to his friends and associates. In 1827 he
located at San Felipe, Texas, where he engaged in

the morning the judge listened very patiently to the argument for a
new trial. The attorney, seeing an unaccountable merriment in the
court room, inquired the cause, when the judge, in the blandest pos-
sible manner, informed the gentleman that his client had already
received his punishmnet and been discharged.

On another occasion he perpetrated a grim joke at the expense of a
still greater criminal. He was holding court in a town on the west-
ern frontier. A man had been clearly convicted of a wilful murder.
The judge pronounced the death penalty, the sentence to be carried
into execution the next day. But he then remarked to the sheriff that
the jail was very uncomfortable and he had better execute him that
night. The truth was, the criminal had a large number of friends,
and the judge knew full well that he would be rescued during the
night.— Thrall's History of Texas, Part 3, p. 606.

20 The Supreme Court of Texas

the practice of law. He served as Alcalde of that
municipality with distinction in 1834. In 1835 he
commanded a company in the Indian campaigns,
and was a member of the Committee of Safety at
the town of Bastrop, where he then resided. He was
a member of the General Consultation, and, in 1836,
was. appointed district judge. In 1840 he was elected
to the Congress of the Republic. He was re-elected
as the member from Washington to serve until an-
nexation, and thereafter for many years repre-
sented that county in the State Senate. He was
one of the ablest lawyers of the pioneer days of
Texas, noted for his eccentricities, incomparable hu-
mor, withering sarcasm, pathos, and eloquence. He
was a man of unimpeachable honor and probity of
character, generous, unselfish and steadfast in his
devotion to his friends. His kindness to all endeared
him to the hearts of his countrymen. The most ac-
curate of Texas historians 1 says of Williamson:

"After a thorough and minute investigation of the
records and history of Texas, I am constrained to
say that Eobert M. Williamson did as much, if not
more, than any other man in precipitating and sus-
taining the revolution of 1835."

"Although," says a contemporary, 2 "his oppor-
tunities for acquiring wealth and independence were
unequalled by those of any man, yet he was of such
a generous and improvident nature that he was often
embarrassed in his pecuniary affairs. Like Mr. Jef-
ferson and Mr. Monroe, and many other great men,

lYoakum.

2Sketch of E. M. Williams, Texas Almanac (1861).

The Supreme Court of Texas 21

he not infrequently felt the iron pressure of 'Res
august a domi.' It may be stated as creditable to his
integrity, that in the midst of corruption and specu-
lation he lived and died in poverty. . . . He was
in many respects a remarkable man. He possessed
a wonderful hold upon the affections of the masses,
over whose passions and sympathies his control was
unbounded. The reckless daring of his own char-
acter contributed largely to this influence. This,
added to a generous and unselfish spirit, and capti-
vating manners, made him, wherever known, the idol
of the people. Inaccessible to threats or bribes, he
was an upright and honest Judge, who unflinchingly
administered the law. His intercourse with his
brethren of the bar was marked with great courtesy.
Toward the younger members he extended a helping
hand, and breathed kind words of encouragement.
The writer is but one of hundreds who remember
gratefully the kindness extended to them in days
long past by Judge Williamson. . . . When
fully aroused, there was a fire and vigor in his speech
that surpassed all description. True, there was a
quaintness and eccentricity, but it was all stamped
with the originality and power of genius. He was
not only a wit of the first class, but a humorist
also; and like all great humorists he bore a burden
of melancholy which was only enlightened by those
sudden sallies, as the storm clouds are illumined by
the sheet lightning. In an appeal to the people,
and as an advocate before a jury he was unsur-
passed. ... In 1857 he had a severe attack of
illness which seriously afflicted his intellect. The
death of his wife . . . occurred shortly afterward.

22 The Supreme Court of Texas

Prom these combined shocks his mind never recov-
ered until the time of his death, which transpired
peacefully on the 22nd of December, 1859, in Whar-
ton County. . . . We do not present the subject
of this sketch as free from blemish. Far from it —
he was mortal and therefore fallible. He had
one fault, and a most grievous one it was, 'One of
the fears of the brave and follies of the wise.' . . .
The fate of our distinguished men has been deplor-
able — Collingsworth, Grayson, Rusk and Jones died
by their own hands." 1

Royal T. Wheeler was born in Vermont in 1810.
In his youth he located in Ohio, where he was edu-
cated, studied law, and was admitted to the bar.
In 1837 he removed to Fayetteville, Texas, where he
formed a partnership with William S. Oldham, and
engaged in the practice of law. In 1839 he located
at Nacogdoches, Texas, where he formed a partner-
ship with Kendreth Anderson, Vice-President of
the Republic. In 1842 he served as district attorney
of the then Pifth District, which was noted for the
strength of its bar. As practitioner and as judge
he was the associate and friend of General Rusk,
Governor J. P. Henderson, and the gifted and elo-
quent K. L. Anderson, by all of whom he was great-

1 "May I supplicate for Robert M. Williamson (who, if a gTeat sinner,
was also a gTeat sufferer) the kind charity of all Christians, and close
this article with the following lines from, the Light-House, which no
voice sang so sweetly as his- own:

"In life's closing hours, when the trembling soul flies,
And death stills the heart's last emotion,
Oh ! then may the seraph of mercy arise,
Like a star on eternity's ocean."

—Sketch of R. M. Williamson, Texas Almanac (1861).

The Supreme Cotjrt of Texas 23

ly esteemed. Upon the adoption of the constitution
of the State, in 1845, Judge Wheeler was appointed
Associate Justice of the Supreme Court. He served
with such ability and distinction in this position
that, when by an amendment of the Constitution, the
office became elective, he was elected without op-
position in August, 1851. Again, in 1856, when the
salaries of the judges of the court were increased,
in common with the bench throughout the State, he
resigned his office and again became a candidate for
the office and was elected by the people. In De-
cember, 1857, when the office of Chief Justice became
vacant by the election of Justice Hemphill to the
United States Senate, Justice Wheeler was elected
without opposition to fill the vacancy.

Of the character and judicial labors of Justice
Wheeler, a distinguished lawyer, 1 who subsequently
became a member of the great tribunal which was
the scene of his successful labors, says:

"Hemphill, Lipscomb and Wheeler have now
passed away from us. The subject of this imper-
fect sketch was the last survivor of that illustrious
trio, who constituted the original Supreme Court of
Texas. Their names are imperishably connected
with the judicial history of our State. They con-
stitute the Dii majories of Texas jurisprudence.
That the subject of this imperfect sketch was deemed
a fit colleague of Hemphill and Lipscomb is in
itself no mean tribute to his worth. He was the
youngest of the three, and while he did not, perhaps,
possess the deep, varied and almost exhaustless

iJudge C. S. West.

24 The Supreme Court of Texas

learning, both in the civil and common law, that so
eminently distinguished his illustrious predecessor
as Chief Justice, nor was he so largely endowed by
nature as Judge Lipscomb, with that keen-sighted,
everyday, practical common sense, and that iron
logic that so abundantly supplied in him the want .of
mere book learning ; yet Chief Justice Wheeler pos-
sessed other mental faculties of a high order, by
the exercise of which he elevated himself to the full
level of his great compeers. His conscientiousness,
his calm, profound and patient industry, his deep
love of truth for its own self, his familiarity with
our statute laws and reports, his accurate com-
mon law knowledge, especially in the great depart-
ment of criminal jurisprudence (in which he sur-
passed both his associates) served him in the place
of genius, and eminently fitted him for the success-
ful discharge of the delicate and exacting functions
of the high office to which he was called. During
his long judicial career Judge Wheeler frequently
had occasion to differ from his brethren upon the
bench. Owing, however, to a constitutional sensi-
tiveness, which very greatly increased in his latter
years, and which made him exceedingly loth to con-
troversy, he, on most occasions, contented himself
with directing the reporter to note his dissent. At
times, however, when his strong conviction of the
truth and justice bore down and overcame his con-
stitutional abhorrence to debate, he would, in a dis-
senting opinion, rich with legal lore, rising even to
eloquence in its earnest vindication of truth against
precedent, place on record the reasons for his dis-
sent. On these occasions he disclosed that, beneath

The Supreme Court op Texas 25

his modest and unassuming exterior, there slept an
iron will and an inflexible purpose that nothing
could swerve from the path of duty. When he made
these struggles he, more than once, unaided, by his
own strong intellect, arrested the current of judicial
decision, and by legislative enactment it was made to
flow in the channel he had marked out, as the true
course of justice. His dissenting opinions in Coles
vs. Kelsey, Sylvester vs. Walker, and Snoddy vs.
Cage, all mark epochs in our judicial history. These,
with many other opinions to be found in the first
twenty-six volumes of the reports, fairly entitle
Chief Justice Wheeler to be ranked among the emi-
nent jurists of our land."

Patrick C. Jack was a native of Alabama. He
came to Texas in 1832. He was a member of the
Congress of the Republic in 1837-38 ; and was there-
after appointed district judge. He died of yellow
fever at Houston, Texas, August 4, 1844.

William B. Ochiltree emigrated from North Car-
olina to Texas in 1839. In 1844 he served as Secre-
tary of the Treasury of the Republic. He was a
member of the Annexation Convention. Thereafter
he held the office of district judge for a number of
years, was a member of the Secession Convention
in 3861, and delegate to the Montgomery Convention.
He died in Jefferson, Texas, December 27, 1867.

The case of Scott vs. Maynard 1 possesses interest
as the first case of trespass to try title which came
before the Supreme Court of the Republic. In this
case Chief Justice Hemphill construes and applies

iDallam Report, 399.

26 The Supreme Court of Texas

the Spanish law defining community property,
adopted in Texas by statute. The opinion dis-
closes a difficulty in the administration of justice
by pioneer courts, accentuated in the lament of the
court that there had been "a strange compound of
error, and a mixture of different systems of juris-
prudence, springing originally from the belief that
the lot sold was the separate property of the wife."
"It is manifest," says the opinion, "that the prin-
ciples of law which governed the case were not dis-
cussed before the district court; and from this cir-
cumstance the judge was misled to charge principles
of law which were not applicable to the case."

In Morton vs. Gerden, 1 Associate Justice Baylor,
in holding unconstitutional a law of the Republic
restricting the right of appeal to the Supreme Court,
indulges a sentiment which will appeal to the average
practitioner :

"Did the constitution intend that in regard to one
class of rights there should be supervision (by ap-
peal to the Supreme Court) and in another there
should be none? Such discriminating and unjust
spirit cannot be deduced from the sacred instrument.
It is the nation's panopy! No one ought to be left
precluded ; nay, irrevocably doomed to abide the min-
istry of justice, by one functionary in the first in-
stance."

In Stockton vs. Montgomery, 2 Justice Hutchins
asks and answers the question, "What is the Con-
stitution?"

"It is the basis on which the government rests

iDallam Report, 480.
^Dallam Report, 473.

The Supreme Court of Texas 27

and the authority for all law ; and is the commission
under which the Legislature, the executive and the
judiciary act. It is permanent and not influenced
by the temper of the times. Whatever the collision
of opposite interests, the virulence of parties and
the conspiracies of corruption; public robberies or
treason, it continues like Hummaleh or the Andes,
amidst and above the storm. If legislative act im-
pugn its principles, the act must yield; and when-
ever it as brought before the court it must be de-
clared void. Nay, the act is inherently nothing." It
is not of record that this opinion was adopted by the
court, thus justifying the surmise that the court,
while endorsing its doctrine, disapproved the man-
ner of its expression.

In Whiting vs. Turley, 1 Justice Hutchins sharply
criticised a statute which he construed as requiring
judges "to proceed in the first instance to try a case
at law, and, if he cannot succeed in the effort, then
to ascend to the woolsack and chancel it!"

iDallam Report, 456.'

CHAPTER II.

1846-1857.

Supreme Court of Texas — Sketch of Justice Lipscomb — Pio-
neer Statute Construed — Lambeth vs. Turner — Regrettable
Practice Condemned — Mason vs. Russell — First Construction
of Law of Common Carriers — Chevallier vs. Straham — Ju-
dicial Humor — Hays vs. Cage — Forceful Judicial Reason-
ing — Bryant vs. Kelton — Dissenting Opinion by Justice
Wheeler — Coles vs. Kelsey — Fictitious Action — Smith vs.
Brown — Effect of Change of Government on Land Titles —
Ancient Mission of San Jose — McMullen vs. Hodge — Dis-
senting Opinion by Justice Wheeler — Snoddy vs. Cage — A
Sound Precedent— Jones vs. State — The Alamo — San An-
tonio vs. Odin — Death of Justice Lipscomb — 0. M. Roberts,
Asociate Justice — Sketch of Justice Roberts.

The State Constitution, adopted August 25, 1845,
provided that the Supreme Court should consist of a
Chief Justice and two Associate Justices, to be ap-
pointed by the Governor on the advice and consent
of two-thirds of the Senate; that it should exercise
appellate jurisdiction only, co-extensive with the
limits of the State, but, in criminal cases, and all
appeals from interlocutory judgments, with such ex-
ceptions and under such conditions as the Legisla-
ture should provide; that said court and the judges
thereof should have power to issue writs of Habeas
Corpus, and, under such regulations as should be
provided by law, issue writs of Mandamus and such
other writs as should be necessary to enforce its

The Supreme Court of Texas 29

jurisdiction, and also to compel a district court to
proceed to trial and judgment in any cause. The
court was required to hold sessions annually between
the months of October and June, inclusive, at not
more than three places in the State ; and it was pro-
vided that the judges of the court should hold their
offices two years and receive a salary of not less than
$2,000 per annum. 1

By an act approved May 12, 1846, 2 the Supreme
Court was organized in conformity to constitutional
provisions creating it. It provided that the court
should hold annual sessions at Austin, Texas. By
an amendment approved November 30, 1850, s it was
provided that the court should hold sessions at Aus-
tin on the second Monday in November, at Galveston
on the first Monday in January, and at Tyler on
the first Monday in April, while by subsequent
amendment, approved December 22, 1851, 4 the court
was required to hold sessions during that year at
Austin on the second Monday in November, at Gal-
veston on the first Monday in February, and at Tyler
on the second Monday in April.

John Hemphill was appointed Chief Justice, and
Abner S. Lipscomb and Eoyal T. Wheeler, Associate
Justices of the Supreme Court of Texas as thus cre-
ated and organized. It is generally conceded by
the most capable and conservative authorities that to
this court is due the honor and distinction of having
been one of the greatest tribunals in the history of

iConstituticm 1845. Sees. 1, 2, 3 and 8.
"Laws of First Leg., p. 249.
sLaws of Fourth. Leg., p. 18.
«Laws of Fifth Leg., p. 99.

30 The Supreme Court of Texas

the American judiciary. To the efficient judicial
labors of its enlightened Justices, Texas is indebted
for the enduring foundation sustaining its judi-
cial superstructure. It has inspired the confidence,
admiration and respect of the legal profession and
tribunals of other jurisdictions, in which its opinions
are recognized as among the ablest and most enlight-
ened exposition of the principles of the law which
are enduring precedents for the protection and pre-
servation of the rights and liberties of the people.
What was said of the Supreme Court of the United
States, with like truth may be said of this court : "It
is the august representative of the wisdom, justice
and conscience of the people in the exposition of
their Constitution and laws; the peaceful and ven-
erable arbitrator between citizens in all questions
touching the extent and sway of constitutional
power." 1

Justice Abner Smith Lipscomb was born in Abbe-
ville District, South Carolina, February 10, 1789.
He was educated in the common schools of that
State, and read law in the office of John C. Calhoun.
Intimate association with that distinguished states-
man was an important factor in the formation of
young Lipscomb's character, and in establishing
tLc foundation of that profound professional learn-
ing which in after years placed him in the front
rank of distinguished jurists whose names are in-
separably connected with the growth and perfec-
tion of Texas jurisprudence. In 1811 he was ad-
mitted to the bar, and located at St. Stephens, Ala-

iHorace Binney.

The Stjpkeme Cotjkt of Texas .31

bama, where he successfully engaged in the practice
of law. In 1812 he served in a campaign to suppress
Indian hostilities fomented by England in the war
of that year, and thereafter served as a member
of the Territorial Legislature of Alabama. Upon
the organization of the State Government, in 1819,
he was appointed Circuit Judge. In 1823 he was
chosen Chief Justice of the Supreme Court of Ala-
bama, serving with ability and distinction in that
position for eleven years. He resigned in 1835, and
removed to Mobile, where he resumed the practice of
law. In 1838 he was elected a member of the Ala-
bama Legislature. In 1839 he resigned that office
and removed to Texas. He was appointed Secretary
of State by President Lamar. He was a member of
the Convention of 1845, and introduced in that body
the resolution accepting the terms of annexation
submitted by the United States. His opinions are
not only distinguished for their judicial learning,
but their literary excellence as well.

In Lambeth vs. Turner, 1 Justice Lipscomb con-
strued the act of the Congress of the Republic which
provided that no suit, proceeding, judgment or de-
cree should be brought, prosecuted or sustained in
any court of the Republic, on any judgment or de-
cree 6f any foreign nation, state or territory; and
which declared that the Republic should not be
bound by international law or courtesy to give cre-
dence or validity to the adjudications of foreign
tribunals whose means of justice were variant and
"unknown here." In this opinion the court ex-

H Texas, 364.

32 The Supreme Couet or Texas

pressly declined to decide how far the law would
have been sustainable in a suit brought on a judg-
ment of a sister court, subsequent to the annexation
of Texas to the Union, in its supposed opposition
to the Constitution of the United States, as the suit
was instituted before annexation. The court held
that it was the purpose and intent of the law to de-
stroy the inviolability which theretofore had been
claimed for foreign judgments ; to open to the courts
of Texas a free and unlimited inquiry into the con-
ditions or cause of the suit; and to apply the rules
of such courts, but with no view to prevent the pros-
ecution of suits founded on good causes of action.
While this construction of the law is correct, there
were certain lay critics who differed with the court,
and were so uncharitable as to charge that the law
was intended to throw the mantle of its protection
over certain citizens of Texas who, in their haste to
follow the Star of Empire in its westward course,
left behind them certain judgment creditors embar-
rassingly importunate in demanding their dues.

In Mason vs. Bussel's Heirs, 1 Chief Justice Hemp-
hill vigorously condemned the practice of permitting
jurors, by their affidavits, to impeach the validity of
their verdicts. "The affidavits," says the opinion,
"of several jurors, going to show their own miscon-
duct, were presented to the court as grounds in sup-
port of the motion. The permitting of such evidence
cannot be too strongly reprobated as leading to the
improper tampering with the jurors to procure such
affidavits after verdict, and further, a juror so

il Texas, 720.

The Supreme Court of Texas 33

shamelessly disregarding the obligations of his oath
as to be guilty of such irregularities, after a cause
has been submitted to him, justly deserves punish-
ment and ought to receive it. Such affidavits when
offered should only have been received and made a
part of the record of the court, as grounds for the
punishment of the affiants." In view of the frequent
attempts in latter years to resort to this practice,
it is regrettable that the precedent established by
this case was not accorded that obedience and re-
spect which its soundness should have inspired.

The case of Chevallier vs. Straham 1 is interesting
as the first ease involving the law of common car-
riers decided by the court. In that case Chief Jus-
tice Hemphill held that persons who, at certain pe-
riods of the year, known as the "hauling season,"
engaged in the forwarding business, miming their
wagons whenever they met with an opportunity,
had none of the characteristics and could not be de-
nominated private carriers ; and that all persons who
transport goods from place to place for hire, for
such persons as employed them, whether usually or
occasionally, whether as a principal or an incidental
and subordinate occupation, were common carriers
and incurred all of their responsibilities.

There is a delightful touch of humor in Associate
Justice Wheeler's opinion in Hays vs. Cage, 2 holding
that a party to a suit is not bound by an agreement
operating to his prejudice, made under authority
of a judicial decision subsequently overruled:

i 2 Texas, 115.
2 S Texas, 501.

34 The Supkeme Court of Texas

"It may be supposed," says the opinion, "that,
as everyone is presumed to know the law, and as
ignorance of the law excuses no one, the defendant
ought not to be permitted to escape the effect of
his admissions, though made under a mistaken belief
as to the law. But if the late Supreme Court, of
which two of ourselves were then members, may be
excused for ignorance of the law, so ought the de-
fendant to be. He cannot, however, with justice,
be said to have mistaken the law at the time when he
made the admission ; for the reason that the decision
of the late Supreme Court then was, or at least by
all inferior jurisdictions was, to be received as the
law until changed by some act of legislation, or over-
ruled by the decision of this court."

A typical illustration of the painstaking research
and forceful, profound judicial reasoning for
which this court is justly noted, is presented in Jus-
tice Lipscomb's able opinion in Bryant vs. Kelton, 1
in which, after an exhaustive review of the English
and American authorities, he adopts the rule in
Twyne's case, holding that the retention of the pos-
session of property by the vendor, after a secret sale
purporting to be absolute, is not fraud per se.

In the able dissenting opinion of Associate Justice
Wheeler in Coles vs. Kelsey, 2 there is an interesting
example of that clear, convincing, judicial reason-
ing characteristic of the illustrious trio which then
adorned the court. The plaintiff in that case insti-
tuted suit on two promissory notes. Defendant's

il Texas, 415.
22 Texas, 542.

The Stjpkeme Couet of Texas 35

answer set up the bar of the four years' statute of
limitations. In the court below plaintiff, without
objection, introduced in evidence a letter of defend-
ant's, written after the bar of limitations attached
to the notes, containing a new promise to pay them,
which was relied upon to remove the bar of limita-
tions. Prom a judgment in plaintiff's favor, defend-
ant appealed. The questions involved in the appeal
were, (1) was it necessary for plaintiff to declare
upon the new promise? and, (2) if so, did defendant,
by failing to except to the petition on that ground,
or object to the introduction of the letter in evidence,
waive the failure of the petition to declare upon the
new promise contained in said letter? In the ma-
jority opinion rendered by Justice Lipscomb it was
held that plaintiff could not rely upon the new prom-
ise without declaring upon it in his petition, and the
case was reversed and remanded to permit an amend-
ment supplying that omission. In his dissenting
opinion Justice Wheeler held that the submission
of the case to the court, and subsequently to the jury,
without objection by defendant to the sufficiency of
the petition or the admissibility of the letter, waived
objections that he might have urged to the petition
for want of an averment of the subject matter of
the letter, and its admissibility as evidence. He de-
clared that to reverse the case merely to enable
plaintiff to supply the necessary averment was to
reverse and remand a case for the sole purpose of
supplying that which appeared upon the record as
having been waived by one party, and proved with-
out objection by another. He believed that when
parties had chosen not to make a question, it was not

36 The Supreme Court of Texas

the province of the court to make one for them, as
they may have had the best reasons for not wanting
to controvert the point in the court below, and may
have acted upon the most deliberate agreement or
the most honorable understanding, mutually obliga-
tory.

" Parties are supposed to know their rights," says
the dissenting opinion, "and to be able to be capable
of conducting their causes without requiring the
judges to so far depart from their judicial duties
as to become their advisers. And when a party
has seen proper to waive an objection to pleadings
or evidence which he might have urged, I do not
deem it the part of judicial duty to interpose ex-
officio to prevent him. That would be, to borrow
an expression from Chief Justice Marshall, for the
courts to assume the guardianship of adults as well
as infants. I conceive it to be the province of the
court to adjudicate the matters actually litigated
by the parties, and none others; to decide the case
in controversy, not to make for them a new and
different case, and decide upon matters not in con-
troversy. Where there is no controversy, there is
no occasion for the interposition of judicial author-
ity. ... To entertain and decide the case here
upon questions never presented to or decided by the
court below is, in so far as the questions considered
are thus originally presented in this court, most
manifestly the exercise of original jurisdiction, and
a departure from the constitutional power of the
Appellate Court. . . . But the judgment of that
court (the court below) is reversed alone upon a
question in respect to which there is no pretense

The Supreme Court of Texas 37

that it made an erroneous or any decision, or that
it was desired or afforded an occasion to make a
decision. ... It will not be questioned that, by
our constitution, this is strictly an Appellate Court.
Yet we do not hesitate to review and reverse a judg-
ment upon a question which was never passed upon
or presented to the court below."

The case of Smith vs. Brown 1 possesses interest as
a pioneer effort to obtain the opinion of the court
touching the constitutionality of law through the
medium of a fictitious suit. The alleged suit was
founded on the following instrument: "I hereby
bind and obligate myself to pay to Josiah Smith the
sum of $150, if he furnish at the town of New
Braunfels, by the sixth of November next, any law
of the State of Texas showing that the next Legisla-
ture of Texas will be composed of seventy members
in both branches, this 6th of September, 1848."
Plaintiff claimed that he performed the condi-
tion by producing the law, while the defendant
pleaded in confession and avoidance that the law
produced was not constitutionally enacted. From
the action of the court below in refusing to enter
judgment in his favor, plaintiff appealed. In the
opinion rendered by Justice Lipscomb it was held
that it was the manifest intention of the parties to
obtain a judicial decision on the constitutionality
of the apportionment law, not founded upon a bona
fide transaction; that it was either an entire fiction,
or a wager designed to effect the same object. As
will hereafter appear, this precedent did not discour-

13 Texas, 371.

38 The Supreme Court of Texas

age a resort to similar tactics during reconstruction.
In McMullen vs. Hodge 1 there is an able and in-
structive exposition of the legal effect of a change of
government on land titles perfected when Texas
won its independence, as well, also, as an interesting
reference to historical incidents connected with the
ancient Mission of San Jose, and the status of its
Indian protegees. Appellant sought to recover twenty
leagues of land, his claim being based upon a pur-
chase of the same from certain Indians alleged to
have been descendants of the Indians of the Mission
San Jose, in Bexar County, which were alleged to
have been granted them by the king of Spain in
1776, for a consideration of $150, "sin media annata,
on account of their being of the population of said
mission, ... by way of sale for their labors,
pastures, and other purposes, without the right of
alienating, conceding, or selling any part thereof,
without the superior license of the Supreme Gov-
ernment of the kingdom, under penalty of annull-
ing this sale, without prejudice to his majesty or a
third party." Defendant claimed title to a part
of the land under a headright granted him by the
Republic of Texas. From the judgment of the court
below in favor of defendant, plaintiff appealed. Jus-
tice Lipscomb in delivering the opinion of the court,
in disposing of appellant's contentions that by the
revolution which separated Texas from Mexico, all
titles to land previously obtained were annulled ; that
none of them in propria vigore, could have a stand-
ing in court; and that to give them life and energy

15 Texas, 44.

The Supreme Court of Texas 39

required the sanction of the new government ; admit-
ting that the doctrine had once had standing in the
jurisprudence, though rarely openly asserted, of
England, but that it had long since become obsolete,
said :

"We are sincerely persuaded that a judicial rec-
ognition by this court of its resuscitation and its
vital influence on the rights of property would shock
the civilization of the nineteenth century. In the
early ages, when the rights of the common masses
were but little considered and cared for, and all
power and all right was permitted to be deposited
in an individual personal sovereignty, it is a melan-
choly fact that the doctrine was too well sanctioned
by the practice of kings and princes of those times.
Then the houses and lands, flocks and herds, hus-
bands and wives, and children of a conquered coun-
try became the spoil of the heartless conqueror. That
age has passed away, and a milder and more enlight-
ened one has succeeded. The masses of the people
have felt their strength, and made the tyrants feel it,
too, and in this moral regeneration a more elevated
sense of right, of justice, and the laws of humanity
has asserted an ascendancy over the cruelty and
despotism of the past. It instructs and commands
in language that will be obeyed the commanding
general that he shall use no unnecessary rigor even
to the prisoners taken in battle; that to peaceful
citizens, not found in the ranks of war, he is to ex-
tend the arm of protection to his person and prop-
erty; that he is to make no innovation upon the laws
and customs, only such as are necessary to the se-
curity of the army and retention of the territory ac-

40 The Supkeme Court of Texas

quired. On this subject public opinion, in almost
every civilized community, has proven one of the
most humane and beneficial portions of the law of
nations. . . . It is indeed a principle that seems
to pervade the whole social relations of man that
laws, customs, and usages, when once established,
shall continue until abrogated by the introduction
of new ones — our sympathies to such influences and
reason approve them as just and right ; and in truth
it is hardly possible to conceive of a civilized people
existing where all laws and customs and all the
elements of the social relations have been dissolved.
Old customs and habits must prevail until new ones
have been established. In the case of conquest it
is undoubtedly true that it is in the power of the
conqueror to destroy all the rights of the conquered,
but in doing so the most flagrant outrage would be
done to the moral sense of the age, and such would
never be presumed to have been perpetrated without
the most positive and explicit affirmation of its au-
thor, and when avowed would most justly place him
beyond the pale of civilization. So in the case of
peaceful change of government by the people assem-
bled in convention for the purpose of forming a new
Constitution as the fundamental law for the pro-
tection of the three great objects of all governments
based on the rights of man — life, liberty and prop-
erty. It would be in the power of such convention
to take away or destroy individual rights, but such
an intention would never be presumed; and to give
effect to a design so unjust and unreasonable would
require the support of the most direct, explicit af-
firmative declaration of such intent. . . . The

The Supreme Court of Texas 41

great fathers of the English jurisprudence built up
a judicial system eminently adapted to sustain the
whole object of the feudal tenures; with them a re-
gard bordering on idolatry was inculcated for the
prerogative rights of the crown. It was supposed
to be the source of not only of all titles to land, but
of every other right or privilege enjoyed by the sub-
ject, and this fount and head of all was called the
sovereign power. It was a corporeal and personal
sovereignty, vested in a particular individual, the
right of eminent domain belonged to that individual
without reference to the will of his subjects. All the
land not granted by him or his ancestors, and that
(which) became forfeited for offenses or reverted
on failure of the heirs of the original grantees, was
vested in him by virtue of the royal prerogative of
eminent domain. He granted or regranted with a
liberal if not prodigal hand to his courtiers, who
were, perhaps, the very worst of his subjects ; such as
had ingratiated themselves into his favor by flat-
tering his vanity or catering to the indulgence of his
guilty and depraved passions. The humble and
lowly but meritorious subject seldom received his
bounty. But all were taught to look to the crown
as the source of all rights and titles, and as the bul-
wark of social order. The landholder was instructed
by the sages of the law that if the king was de-
throned by a successful revolution all titles would be
abolished from the failure of the source from which
they emanated; that when the fountain failed the
cisterns supplied from it were dried up. It was
a part and parcel of a system than which none has

42 The Supreme Court of Texas

ever been devised more eminently calculated to
perpetuate hereditary monarchy."

The court held that if an affirmative act of the
Republic of Texas were necessary to the validity
of titles perfected when Texas was a province of
the Mexican Confederation, it had been performed
by the Convention as well as by act of the Congress
of the Republic.

Colonel Navarro's testimony in the record of
the cause, describes the mission system and condi-
tions which prevailed at the Mission San Jose when
he first knew it. At that time there were about 600
Indians there, who were afterward killed, died,
or went away. They decreased yearly, until the last
he knew of them there were only ten or fifteen left.
The Indians in the village were in a state pupilage,
under the control and guidance of the fathers. They
owned no property, all their property being held
in common, the fathers receiving and selling the
product of the Indians' labors. The property of
the mission was held in los manus mortuous or mort-
main. All the missions on the San Antonio River
were extinguished by the government of Mexico in
the year 1822 or 1823, and the lands and property
appertaining to them were distributed. He was
commissioned by the Mexican government to assist
in the distribution of the lots and solares near the
mission, and pertaining thereto, natives being pre-
ferred in such distribution. On the extinction of
the missions all the mission property reverted to the
public, and became subject to distribution as other
public property. Witness, afterwards, as commis-
sioner for the government, made a title to Vera-

The Supreme Court of Texas 43

mendi to six leagues of land formerly belonging to
the Mission Refugio. When the missions were ex-
tinguished the mission property was delivered over
to the ordinari. The missions in the valley of the
San Antonio River were under the patronage and
protection of the Order of Guadalupe or Guada-
lupians, and were founded by the brothers for the
propagation of the faith.

Colonel Erasmus Seguin testified that the mission
Indians lived in community under the control and
direction of the fathers, who received the product
of their labors. At the end of ten years the Indians
were considered as having been converted, and after
a probation of two years more they were permitted
to leave the mission, and were then considered as
entitled to the privileges of citizenship. Before
their conversion and the expiration of the two years'
probation, they owned no separate property, but
everything was in community, under the control
of the fathers. After their conversion Indians were
given a suerte or lot of ground, and title made to
them in their own names, which they could sell, or
any of their property, as any other citizen.

The court held that at the date of the grant the
Indians could not alienate their possessions without
consent of the government, and there being no evi-
dence of such consent, their sale was void.

The dissenting opinion of Justice Wheeler, in
Snoddy vs. Gage, 1 as was aptly observed by a con-
temporary, 2 "marked an epoch in our judiciary."

15 Texas, 106.
2Judge C. S. West.

44 The Supreme Court op Texas

The majority opinion held that where a debt was
contracted in a foreign country by one subsequently
removing to Texas, the running of the statute of
limitations was not suspended until his arrival, but
ran against the action from the accrual of the de-
mand, basing this conclusion on a construction of the
statute which excluded from its provisions persons
who had never resided in Texas, and hence could not
absent themselves from the State or "return" to it
within the meaning of the law. Justice Wheeler, in
his dissenting opinion, after reviewing numerous,
authorities sustaining the contrary view to that ex-
pressed by the majority, says:

"Without entering upon any discussion respect-
ing the reasonableness of the adjudication or in-
tending to resort to the argumentum ad dbsurdum,
I may be permitted to advert to one consequence of
the new construction, which is that a debtor resid-
ing in a State where the period of limitation is
double that of our law, when the period of the law
of his domicile shall have but half elapsed, may
abscond to this State, and his legal liability and the
plaintiff's right of action will be effectually and
forever barred the moment the absconding debtor
comes within the influence of our laws ; * and this
though his creditor be a citizen of this State. Can
it be supposed that the Legislature ever intended
such a consequence? that it was actually intended
that the plaintiff's right of action should be barred
in our courts before it ever had any existence?
. . . Although, in my opinion, the construction
of the statute which has hitherto prevailed, and to
which I adhere, is based upon reason as well as

The Supreme Court oe Texas 45

authority, and is not less certainly supported by the
one than the other, it would at least be surperfluous
if not even presumptious in me to enter upon a
formal vindication of the reasonableness of a series
of adjudications so numerous, and proceeding from
sources of so high authority. And if, in my con-
ception, it did admit of doubt what construction
ought originally to have prevailed, if I may be per-
mitted to adopt the language and sentiment of Mr.
Justice Baldwin on the occasion of an inquiry not
unlike the present: 'It sufficed for this case to show
by a brief reference what the law for more than a
century has been and now is, without ever so far
departing from what I deem my judicial duty as to
even inquire what it ought to be; as if it was in
my power to abrogate or vary from its rules on this
or any other subject. "Where a point is decided by
adjudged cases, or laid down as settled in the books
of acknowledged authority, I take it and feel bound
to act upon it as the common law, which is infused
into our jurisprudence, unless some act of the Leg-
islature or some decision of this court prescribes
another rule. When this court declares that. 'we
are entirely content to administer the law as we
find it, ' I feel bound to endeavor to find it, and when
found to follow it in all its course. And in search-
ing among the fountains rather than the rivulets of
the law for its true principles, I apprehend that
there can be no safer guide than its precedents and
adjudications, which, from ancient times, have em-
bodied and preserved unchanged those principles
which time has consecrated by the certainty of the

46 The Stjpkeme Cotjet of Texas

law, and the security and repose of which an ad-
herence to its rules afford to the rights of property
and person.' 1 Finally (in the language of Chancel-
lor Kent), 2 'If the Gordian knot is to be cut, we
ought at least to call for the dignus vindice nodus.
There ought to be an object befitting so bold a prec-
edent.' "

In Jones vs. State/ Justice Lipscomb, in sustaining
counsel's contention that the drinking of ardent spir-
its by the jury at the trial in the court below was
sufficient ground for a reversal of the case, an-
nounced the following principle of law supported by
a well-known and convincing authority :

"The weight of authority seems to be against mak-
ing the single fact of a jury drinking ardent spirits
per se a sufficient ground for setting aside the ver-
dict. It is treated as any act of misconduct; that
if furnished by a party, or if it had any influence
upon the jury in finding their verdict, it would be
grounds for setting it aside. We, however, with due
respect for the judges who have maintained this
doctrine, are constrained to depart from their opin-
ions, and we believe that the view they have taken
of the effect of ardent spirits on the feelings, and
also the mind, have been superficial and not at all
philosophical. Every day's experience must satisfy
us that it is impossible to lay down a rule as to how
much can be drank without impairing the qualifi-
cations of a juror for the discharge of the trust con-

12 Peters (U. S.) Rep. 626.
26 Johns Keport, 436.
813 Texas, 181.

The Supreme Court of Texas 47

fided in him. Its effects have well been described by-
Scotland's most popular bard: 1

" 'Inspiring' bold John Barleycorn !
What danger thou can'st scorn !
Wi' tipenny we fear nae evil ;
Wi' usque bae, we'll face the devil.'

"Yes, it is but too true that it will make a man
bold and reckless, not only of consequences, person-
ally, but also of the rights of those whose life and
most valuable interests, property and reputation,
are at stake; and its effect is so different on differ-
ent men that it would be dangerous in the extreme
to attempt to lay down any rule by which it could
or should determine whether a juror had drank too
much or not, and the only safe rule is to exclude it
entirely."

The opinion of Justice Lipscomb in San Antonio
vs. Odin, 2 contains interesting historical data relat-
ing to the Alamo. In sustaining a land grant to the
Catholic Church by the Congress of the Republic
of Texas, the opinion says:

"Prom the statement of facts it appears that the
city of San Antonio was founded about the year
1730. The corner stone of the Alamo was laid on
the 13th of May, 1744. This mission, as well as
others in the valley of the San Antonio River, was
erected by order of the king of Spain, for the pur-
pose of civilizing the Indians. The missions were
under the charge of the Franciscans, or friars of that
order, which was an order independent of the church.

iRobert Burns.
215 Texas, 539.

48 The Stjpeeme Couet of Texas

The mission of the Alamo was formerly known as
the Mission Valerio, and was secularized in 1794.
After the secularization, the Indians remaining were
sent to the missions of Ooncepcion and San Jose.
None of the property pertaining to this mission was
ever distributed by order of the government, except
a few suertes assigned to the Indians. The friars
continued to occupy the buildings until 1801, when
the Spanish soldiers took possession of the build-
ings and continued to occupy them until 1835. . . .
In the year 1794, after the secularization of the
missions, the baptismal registry of births and deaths
of this mission was delivered over into the hands of
the curate of Bexar, and the people of the mission
became subject to his jurisdiction. From 1808 to
1835 there was a separate registry kept by the com-
pany stationed at the Alamo, for the births, deaths,
and baptisms of said company. From the year 1801
to 1835 mass was frequently celebrated at intervals
of from eight to ten days, and other religious rites,
such as baptisms, burials and marriages. The part
of the building originally intended for the church
was never completed; it never had a roof. One of
the rooms in another part of the building was fitted
up as a chapel and used as such. The Mission of the
Alamo is situated within the limits of San Antonio.
In 1827 the Secretary of the Treasury of Mexico or-
dered one Erasmo Seguin to make an inventory of
the property belonging to the national government
of Mexico in Bexar. He then included these build-
ings in the inventory and forwarded them to the
treasurer. In 1823 an order was issued by the gov-
ernment of Mexico for the sale of the houses, lots,

The Supreme Court of Texas 49

mills and lands pertaining to the extinguished mis-
sions of San Jose, Concepcion, San Juan and Es-
pado, and the property was sold, but the conventual
houses were reserved from sale, except the convent
attached to the Mission San Jose, which was sold. . . .
After the year 1835, these buildings were vacant and
in a very dilapidated condition, and so remained
until 1841, when there were two or three families
living in, or occupying different rooms. They took
possession without the consent of anyone. After
being there two months they were told by the Bishop
at San Antonio that the property belonged to the
church, and were requested to occupy and take care
of the same for the church. These families remained
there ten months afterwards and then left. About
the beginning of the year 1847, the quartermaster of
the United States army took possession of the Alamo
buildings and claimed them as belonging to the
United States government, but, in April of the same
year, acknowledged to hold them as tenant of the
Bishop of Texas. The fact that the government held
as tenant was not known to the public until about
eighteen months before the commencement of this
suit. The bishop had an agent in San Antonio in
1841, but his agency was not publicly known, but he
did exercise general control over it."

Justice Lipscomb died during the session of the
Supreme Court at Austin, November 30, 1856. Oran
M. Roberts was appointed Associate Justice of the
court to fill the vacancy created by that melancholy
event.

Justice Roberts was born in Laurens District, Al-
abama, on the 8th of July, 1815. Obe Roberts, his

50 The Supkeme Coukt op Texas

father, removed to Ashville, North Alabama, where
he died when young Roberts was ten years old. His
father's cherished desire, in which he shared, was
that his son should enter the legal profession, but
unfortunate complications in the administration of
his father's estate necessitated the postponement of
the fulfillment of that ambition. Following the death
of his father, his mother removed to a small farm,
where her son labored until his sixteenth year. He
acquired the rudiments of an education in a school
conducted in a log school house during the winter
months. It was there that a minor incident occurred
which changed his career. Becoming thoroughly dis-
gusted with the stubbornness of a mule he was work-
ing, he left the field and announced to his mother
that he would never attempt to drive it again, but
would quit the farm and prepare for college. Not
even his mother's suggestion that he, himself, and
not the mule, was the stubborn one, discouraged his
settled purpose. Through kindly aid extended him
by his brother-in-law, Robert Bourland, a prosper-
ous blacksmith, and Ralph Lowe, afterwards a judge
of the Supreme Court of Iowa, he entered the Uni-
versity of Alabama, from which he graduated in
1836, in his twenty-first year. Thereafter he was
employed by Judge Ptolomey Harris of St. Stephen,
as tutor to his children, where he was extended the
privilege of reading his employer's law books, his
professional studies being thereafter completed in
the office of William P. Chilton of TaUadega, who
afterwards became a judge of the Supreme Court
of Alabama. December 12, 1837, he was admitted
to the bar and located at Ashville. In 1838, when

The Supreme Court of Texas 51

twenty-four years old, he was elected Eepresentative
in the Alabama Legislature. In 1840 he removed to
the Republic of Texas, settling at San Augustine,
where he engaged in the practice of law, and was
early recognized as one of the ablest lawyers
of the strong bar of the Republic, composed of such
lawyers as Thomas J. Rusk, R. A. Scurry, Richard
S. Walker, J. Pinckney Henderson, Thomas Jen-
nings, W. B. Ochiltree, D. S. Kaufman, Royall T.
Wheeler, George W. Terrell, and John H. Reagan.
He was appointed district attorney by President
Houston, and, in 1845, appointed district judge by
Governor Henderson. At the close of the Civil War
he was elected United States Senator from Texas,
but was not permitted to serve because an "un-
pardoned rebel," and an "impediment to reconstruc-
tion." Prom 1868 to 1870 he served as instructor in
the science of government in the Gilmer, Texas,
high school. In 1878 he was elected Governor of
Texas, and was re-elected in 1880. Prom 1882 to
1892 he was professor of law in the University of
Texas.

Justice Roberts was one of the ablest jurists whose
efficient services contributed to the upbuilding, ad-
vancement and perfection of our judiciary. "He
was a great and pure man," says a distinguished
contemporary, "who in the midst of a free people
devoted his energies to secure their civil rights and
liberties." The imperishable record of his long and
most distinguished services and efficient labors as a
Justice of the Supreme Court of Texas, attest the
merited reputation of Judge Roberts as one of the
greatest judges who has adorned our Supreme Court,

52 The Supkeme Cotjkt of Texas

while his services as Governor of Texas entitle him
to the distinction of having been the ablest states-
man who has contributed to the cause of good gov-
ernment. No official connected with the enviable his-
tory of Texas enjoyed to a greater degree the confi-
dence, admiration and profound respect of friends
and adversaries alike. Even the most bitter and un-
compromising opponents of his opinions and policies
conceded his conscientious sincerity, unimpeachable
integrity of character and unswerving honor. Those
who differed with him always retained that confidence
in him which General Houston, a strong anti-seces-
sionist, voiced when asked his opinion respecting
the probable action of the secession convention. "I
don't know what they will do," General Houston
replied, "but Eoberts is honest." Judge Roberts
possessed to an eminent degree that democratic sim-
plicity in personal manner and bearing toward per-
sons in all stations of life, which is the attribute of
true greatness, and which made him a typical speci-
men of that rarest and most admirable of charac-
ters, the true Southern gentleman of the olden time.
To a distinguished contemporary, friend and inti-
mate associate 1 of Justice Roberts we are indebted
for the following description of his personal appear-
ance, his methods of work, and most excellent char-
acter :

"Judge Roberts was of dark complexion, five feet
and eleven inches high, . . . symmetrical in pro-
portions, even in advanced age, and graceful and
erect in carriage. Though his eyebrows remained

iJudge A. W. Terrell.

The Supreme Court of Texas 53

black to the last, the hair of his head and beard be-
came white when he was thirty years old. My op-
portunities, as reporter of his decisions through ten
volumes, enabled me to know much of his methods.
The mental process through which he reached his
conclusions was so methodical and exact that I do
not remember an instance in which he ever rewrote
an opinion. They were often interlined, but never
except to express more forcibly an idea already con-
veyed. Even in advanced age he could pass at once
from mental labor which deeply interested him to
a cheerful and animated conversation on everyday
affairs. This admirable temperament, which sub-
jected his mental activities to his will, secured for
him quickly the benefit of needed repose. As a
speaker he was not fluent, but his earnest manner
convinced the hearer of his sincerity and always
commanded attention. In a long life, no man who
ever knew him ever doubted his integrity, or be-
lieved that he could do a dishonorable act. So posi-
tive and uncompromising was he in advocating what
he believed to be right that he could not escape cen-
sure ; but even his most prejudiced adversary never
doubted his sincerity of purpose. Perhaps the high-
est tribute to his personal character is found in the
fact that though he never speculated in business,
and was economical, yet after a long and eventful
life, during which many opportunities existed for
the easy acquisition of wealth, he died a poor man."
As one of several impecunious law students who,
in the declining days of Judge Roberts' illustrious
career were objects of his kindly interest and ben-
eficiaries of his invaluable assistance in their studies,

54 The Supreme Court of Texas

and to whom, in hours which should have been de-
voted to needed repose, he gratuitously repeated law
lectures delivered to his classes in the University of
Texas, the writer is pleased to here record his grate-
ful acknowledgment and sincere appreciation of a
noble sacrifice which shall never be forgotten.

CHAPTER III.

1857-1864.

Royall T. "Wheeler Succeeds Chief Justice John Hemphill —
James H. Bell Succeeds Royall T. "Wheeler as Associate
Justice — Sketch of Justice Bell — Clear Judicial Reasoning
of Justice Roberts — Howze vs. Howze — Dissenting Opinion
in State vs. Cain — De Blane vs. Lynch — Book of Leviticus
and Twenty-sixth Psalm as Authorities — "Not as Fearing
Her Cause, but as Suspecting Her Judge" — United States
vs. Hickory — An Important Decision — City of Galveston vs.
Menard — Early Example of a Modern Tendency — State vs.
Southern Pacific Company — A Fetching Illustration — Hous-
ton Tap & Brazoria Railway Co. vs. Randolph — George F.
Moore Succeeds Associate Justice Roberts — Sketch of Jus-
tice Moore — Ex Parte Coupland — Refined Art of Faint
Praise — Denunciation of Military Encroachment Upon Civil
Tribunals — State vs. Sparks — State vs. Sparks and Ma-
gruder.

Chief Justice Hemphill was elected United
States Senator in December, 1857, the vacancy thus
caused being filled by the appointment of Royall T.
Wheeler as Chief Justice, and James H. Bell as As-
sociate Justice to succeed Justice Wheeler.

James Hall Bell was born at Bell's Landing —
now Columbia — Brazoria County, Texas, on Jan-
uary 2, 1825. In 1837 he entered St. Joseph's Col-
lege, Bardstown, Kentucky, but returned to Texas
on the death of his father in 1838. In 1839 he en-
rolled as a student of Center College, Danville, Ken-

56 The Supreme Court of Texas

tucky. In 1842, during unsettled conditions in
Texas incident to the capture of San Antonio by-
General Wool, he was compelled to return before
completing his studies in that institution. He served
in General Somerville's command in repelling the
Mexican invasion. Thereafter he studied law in the
office of William H. Jack, one of the leading lawyers
of Texas at that period. In 1845 he became a stu-
dent in the law department of Harvard University,
where he enjoyed the valued privilege of receiving
instruction from Greenleaf and Story, the eminent
law writers, who were then professors in that in-
stitution. There he not only mastered the science
of law, but the Latin, French, and Spanish lan-
guages as well. In 1847 he returned to Texas,
formed a law partnership with Robert J. Towns,
and engaged in practising law at Brazoria. There-
after he devoted several years to the management
of his plantation. In 1853 he resumed the practice,
in which he was very successful. In 1856 he was
elected district judge of the First Judicial District,
then composed of Galveston, Brazoria, Fort Bend,
Austin, Fayette, Colorado, Wharton, and Matagorda
counties. He was an uncompromising opponent of
secession, but rendered valuable service to the peo-
ple of Texas on the occasion of the refusal of Gov-
ernor E. J. Davis to surrender the office of Governor
to Richard Coke, who had been elected to succeed
the former. The failure of President Grant to in-
terfere in behalf of the Davis faction during that
dangerous disturbance has been ascribed to the ac-
tion of Judge Bell in proceeding to Washington

The Supreme Court of Texas 57

and presenting the controversy to the Federal au-
thorities in its true aspect.

"The character of Judge Bell," says an able and
eloquent contemporary, 1 "was a fine blending and
arching over of a rough-hewn exterior, toughened
by contact with the varied and heterogeneous ele-
ments of colonization, strengthened by the inspiring
surroundings of primitive nature, and chastened
by the innate qualities of a perfect gentleman, bur-
nished and developed by the influences of a thor-
ough education and the arts of refined society. Born
in a tent on the banks of the Brazos, surrounded
by lawless Mexicans, and, at no great distance, by
the fiercest of all tribes of American Indians, his
infancy and youth were passed amid all the dangers
and excitement that characterize the varied and
shifting scenes of frontier life. He saw civilization,
as it were, walk forth from the colony of Austin,
plant its habitations here and there in the deep wilds
and far away over the boundless plains, and strew the
seeds of cereal verdure upon the ancient burial
mounds of the Comanches. Swaddled in the leafy
groves of primeval settlement, he was born and
reared in Texas, and grew with her until he wore the
proud ermine of a great State. Such a life engen-
ders two extremes — a degraded lawlessness, or the
development of the noblest qualities of manhood.
It had the latter effect upon Judge Bell. A deep
sense of honor, an abiding love of truth and jus-
tice, a poetic view of nature, lofty philanthropic
aspirations, and fondness for the higher amenities of

iGeorge Goldthwaite.

58 The Supreme Court of Texas

life, were clearly impressed upon his mind and heart,
and became the ruling elements of his character.
Time nourished and strengthened the combination
until it ripened into the pure man and patriot, the
accomplished scholar and learned judge, the emi-
nent citizen exercising a salutary influence upon
all the relations of life. . . . His reported de-
cisions are enduring monuments of his capacity and
purity. His original method of rendering his opin-
ions is a unique model of judicial exposition. His
custom was to open the door of the case at once, an-
nounce his opinion at the start, and then proceed
to assign his grounds by proof rather than inference,
which indeed is the proper logic of the advocate,
and is surely more satisfactory than to suspend the
conclusion through a long series of premises and
obiter dicta."

"The efforts of Judge Bell to avert the war," says
an eminent Judge, 1 "was perhaps the most heroic
effort of his life, and manifested a self-sacrifice and
patriotism which could not be suspected. It mani-
fested his fitness for the highest and most sacred
trusts. Failing in this effort, he went on in the
faithful discharge of his duties as a judge of this
court, and when the desolation of the State was as
complete as arbitrary military power could make it,
he gave most efficient aid in securing the restoration
of civil government. For his devotion to duty, high
character, learning, and courage, we honor his mem-
ory and would perpetuate it."

iChief Justice John W. Stayton.

The Supreme Court op Texas 59

The case of Howze vs. Howze, 1 otherwise of minor
importance, admirably illustrates the convincing ju-
dicial reasoning which was a distinctive feature of
Justice Roberts' opinions. The case involved the
construction which should be given the following
clause of a will: "I give and devise to my beloved
wife, Sarah Howze, the settlement of land on which
I live in Rusk County, Texas, containing about three
hundred and sixty-nine acres, for a home during
her lifetime. I also give and devise to her as long
as she lives, the following negroes, to- wit : Primera
and Hanna and her children; also, all of my house-
hold and kitchen furniture, and all of my stock of
different kinds, together with ample provisions for
one year."

The court below held that the words, "all of my
stock, of different kinds," passed a wagon, as well
as a yoke of oxen, to the legatees.

"It is contended," says Justice Roberts, "that
the farm having been given for a home, the words,
"all my stock, of different kinds," conveys the idea
that all horses, oxen, cattle, farming utensils and im-
plements of husbandry, necessary to carry on the
farm, were given to the wife. . . . The cardinal
rule in the construction of wills is to follow the in-
tention of the testator. The circumstances which
surround the testator, his condition and habits of
life, his occupation, the nature and extent of the
property bequeathed; whether the whole or only a
part of it; the country in which he lived, and the
like, are all legitimate objects of consideration in

119 Texas, 554.

60 The Stjpreme Coubt of Texas

reading his will, as he intended it should be under-
stood. It has been said that 'it is vain to look to
the books for precedents to aid us in arriving at a
correct conclusion as to the intent of the testator.
This duty must be performed by every court for
itself in each particular case.' 1 Notwithstanding
this may generally be true, it would certainly be
more satisfactory to find a construction of the same
words in any of the sister States, particularly where
similarity of expression, habits of life and character
of property would render it authoritative. Hence
some research has been made into the decisions of
Georgia (where the will was made), Alabama, Mis-
sissippi, Tennessee and Kentucky." Calling atten-
tion to the fact that the testator had given the
legatee the farm, to be her home for life, with the
expectation that she would rear the children he had
by her, which favored the conclusion that he might
have intended that she should have the wagon and
other farming implements ; that the will, in connec-
tion with the inventory, disclosed that he had given
his children by a former wife a negro each, worth
$500; that there were about sixteen negroes at the
time of his death, one-half of whom were not dis-
posed of; that a negro of the same value was to be
given to the rest of the children, as they should
arrive at maturity; that his widow, who was exe-
cutrix, and his son, who was executor, should have
charge of the surplus property not specifically be-
queathed, so as to make proper provision for the
younger children as they grew up ; and that all prop-

lOook vs. Weaver, 12 Ga., 50.

The Supreme Court of Texas 61

erty except that given to his wife was to be equally
divided between the children; the court concluded
that it was not improbable that the farm left to
the wife would be used for the maintenance and
support of such children. "In that event," says
the opinion, "the establishment which he designed to
be kept up for the benefit of the minor children would
need a wagon and other implements of husbandry
as much as it had in his lifetime. ... It is
reasonable to suppose that he would more likely
wish his children to have the benefit of the wagon
and other implements than his widow, having made
for her a specific provision, and secured it to her
beyond contingency. . . . Descending from the
general context to the particular sentence, 'all my
stock, of different kinds,' the probabilities still
greatly increase in favor of the children and against
the widow. The question is, what would a farmer
of moderate means in this State or in Georgia mean
by the expression 'all my stock, of different
kinds?' Would he mean a wagon? We think not.
That expression is almost universally the appropri-
ate designation of domestic animals on and about
a farm. And among farmers of moderate means it
would generally be applied only to cattle, sheep, hogs
and goats, and not to animals for the team or saddle,
such as horses, mules and oxen. This would be
variant in different localities, just in proportion to
the amount and character of stock raised. . . .
Appellee's counsel furnishes us with an English con-
struction of the phrase 'farm stock,' which shows
that it has been held to mean, not only all movable
property upon and belonging to the farm, but also

62 The Supreme Cotjet op Texas

growing crops. If stock in the will was used with
this meaning, it would comprehend the household
and kitchen furniture, and also the provisions for
one year that are specified in the same sentence.
Therefore the force of this analogy is weakened
on the same principle that an argument defeats it-
self which proves too much. And the same may be
said of another phrase furnished, 'live and dead
stock,' which is construed to include 'corn, hay,
straw, carts, etc. The great objection to these anal-
ogies as authority is, that those expressions are not
in use among the mass of the people, and if they
should happen to be used, it is an exotic imported
into this country. ... It may be an omission
on the part of the testator that he did not include
the wagon and other farming implements in this
bequest to his wife. But unless the import of the
words used by him in the will, considered with all
their relations to other parts and the subject matter
of the bequest will justify it, we cannot supply the
omission."

In Gain vs. State, 1 Justice Roberts rendered a
strong dissenting opinion, holding that the act of
the Legislature adopting the Penal Code, passed on
the 28th day of August, 1856, and taking effect
April 1, 1857, repealed an act passed on the 2nd day
of February, 1856, which became effective on the
first Monday in the following April, making it a
criminal offense to retail intoxicating liquors in
quantities less than a quart, without a license. He

ISO Texas, 355.

The Supreme Coxjet or Texas 63

concludes his able discussion of the point involved in
the following convincing manner :

"Two bodies cannot occupy the same space at the
same time, so the code, being adopted, became a sub-
stitute for the common law and all its perfecting
and amending statutes, which were passed prior to
the code; the liquor law of the 2nd of February,
1856, being one of them, was repealed by the code.
Those passed after the code must stand, though not
in harmony with it, because they are the last expres-
sion of the legislative will, and cannot therefore be
disregarded by force of what is intended in the code,
which is as to them an anterior law. If it be said,
on the one side, that there is no precedent for this,
it may be answered on the other, that there is per-
haps no similar case to be found where a criminal
code has been adopted, assuming to embrace all the
law on the subject. And, therefore, the question
must be resolved on principle. Penal laws should
not only be plain, but they should be plainly not re-
pealed when they are enforced; especially if they
belong to the class of offenses mala prohibitis."

In Be Blane vs. Lynch, 1 Justice Bell cites the twen-
ty-first chapter of Leviticus and the sixty-seventh
Psalm approvingly, as sound precedents defining
the meaning of the word "increase" as applied to
land. While conceding that the construction of the
term was sound as applied to the facts therein con-
sidered, he denied that it could be applied to crops
grown on land the separate property of the wife,
under the Texas statute, without leading to results

123 Texas, 28.

64 The Supkbme Cotjkt of Texas

"wholly inconsistent with the recognized principles
of law upon which the system of community prop-
erty is based." From this it reasonably appears
that while he conceded that the Bible is admittedly
the soundest authority upon the several questions
of which it so admirably treats, he recognized that
it should be cited with caution. The wisdom of that
conclusion is admirably illustrated in the subsequent
case of Hickory vs. United States? in which Justice
White condemned the charge of a trial judge which
instructed the jury that concealment upon the part
of the accused had been considered by the law, since
Cain killed Abel, as an evidence of guilt; and that
it "was a truth recognized by the law that 'the
wicked flee when no man pursueth, but the innocent
are as bold as a lion.' " Supporting his contention
that the flight was a presumption of fact — not of
law — and merely a circumstance tending to increase
the probability of the guilt of the accused, Justice
White cited the case of Dr. Fuller, who gave the
following quaint excuse for running away from Lon-
don when charged with treason:

"And if any man taxes me as Laban taxed Jacob,
'Wherefore didst thou flee away secretly without
taking solemn leave?' I say with Jacob to Laban,
'Because I was afraid.' " "And that plain dealing
patriarch," says Justice White, "who could not be
accused of purloining a shoe latchet of other men's
goods, confessed himself guilty of that awful felony
that he 'stole away' for his own safety; seeing that
truth may sometimes take corners, not as fearing

1160 United States, 416-417.

The Stjpkeme Cotjkt or Texas 65

her cause, but as suspecting her judge." The sting-
ing rebuke in the last sentence of the above is fully-
appreciated when it is recalled that the late Judge
Parker, of the United States District Court, who
delivered the charge criticised, was wont to boast of
the more or less questionable distinction of having
pronounced the death sentence upon a greater num-
ber of accused persons than any judge who ever sat
upon the bench.

An important opinion was rendered by Justice
Roberts in City of Galveston vs. Menard? in which
it is held that the rule of the civil law restricting the
boundaries of grants by sovereign authority on the
shores of seas or bays, to the highest tide in winter,
and also the rule of the common law restricting them
to the line of ordinary high tide, could be extended
below the points specified, where the nature and
purpose of the particular grant clearly indicated
that such was the intention of the parties thereto.
The principal point involved in this case was whether
a grant by the Republic of Texas to Menard of a
league and labor of land on and including the east
end of Galveston Island conferred the shore right
to certain flats south of the channel and the bay.
It was held that the grant conveyed such right to
the grantee, notwithstanding said flats were below
the highest tide in winter, as well as below ordinary
high tide, because it appeared that it was the inten-
tion of the parties to the grant that a town was to
be built thereon which should be a port of entry;
the grant being made large enough to include that

123 Texas, 349.

66 The Supreme Court op Texas

part of the island nearest the bar, and where the
channel of the bay approached nearest the edge of
tidewater, thus admitting of the construction of
wharves for the accommodation of ocean-going com-
merce.

Justice Roberts' opinion in State vs. Southern
Pacific Railroad Company, 1 discloses the tendency
of private corporations, as early as 1859, to adopt
what has since become the fixed policy of no incon-
siderable number of them. In explaining the reason
for the adoption of that clause of the Constitution
which provided that two-thirds of the Legislature
should have power to revoke and repeal the charters
of all private corporations by making compensation
for their franchises, the opinion says:

"The history of corporations in the United States
exhibits the increasing tendency of capital to seek
employment under their protection, as the only
avenue left in this country of equal rights, to spe-
cial and exclusive privileges, and the most persistent
efforts to assert, maintain and perpetuate those priv-
ileges, in entire independence of the power and con-
trol of the State creating them, by appealing to the
Federal judiciary. Corporations have even contested
the right of eminent domain in the State, and
claimed an exemption from the operation of this
high power to which all other property is subject.
To forestall, in part, such pretensions this clause was
inserted in the Constitution. It is intended as a
direct assertion of supremacy by the State over
them, at discretion, subject only to the conditions of

124 Texas, 80.

The Supreme Court of Texas 67

a two-thirds vote of the Legislature, and the pay-
ment of the franchise revoked." The rapid growth
and development of this tendency, as well as the
litigious strife which has attended it, are matters
of common history with which citizens are familiar.
The oft repeated, vigorous efforts of many corpora-
tions to utilize the Federal judiciary as a sanctuary
to escape restrictions imposed by State legislation,
have been equalled only by like determined efforts
of the State to circumvent that practice. Additional
interest attaches to this case by reason of the ex-
pression therein of the personal opinion of Justice
Roberts that the charter was not a contract within
the meaning of the Constitutional provision inhib-
iting the impairment of the obligation of contracts,
the leading cases of Fletcher vs. Peck and Bart-
mouth College vs. Woodward to the contrary not-
withstanding.

In Houston Tap & Brazoria Railway Company vs.
Randolph, 1 there is a fetching illustration employed
by Justice Roberts, of the consequences of a disre-
gard of an elementary rule governing the exercise of
constitutional powers and jurisdiction by co-ordi-
nate departments of the State government.

"The officers of each department," says the opin-
ion, "are chosen by the people, with reference to
their capacity and general fitness to discharge the
peculiar duties of that department. They (the
people) have a right to expect that the respective
duties allotted to each department shall be per-
formed by those they have chosen to perform them.

124 Texas, 337.

68 The Supkeme Cottkt of Texas

They would be not a little surprised to find that all
the chief executive officers, the Governor and heads
of departments, elected by the whole people of the
State, were summoned before the district court of
Travis County and required there to contest the pro-
priety of any of their official acts, done within the
scope of their authority, and perchance, after a te-
dious struggle, the facts in issue being tried and
determined by a jury of twelve men, citizens of
Travis County, and compelled, under the penalty of
attachment and imprisonment for contempt, to do an
act, which they had refused to do, acting under their
oath of office, and under a sense of responsibility to
their constituents. If the court assumes to act, it
must carry out its judgment. What is the conse-
quence ? The Governor is required to sign a patent
to land. It is a mere ministerial act by writing his
name ; the right of the plaintiff has been made clear
in the district court; and the reasons given by the
Governor for his refusal are not deemed sufficient by
the district judge. The Governor, under a sense of
duty, and to resist aggression upon his official rights,
is obstinate and will not obey the mandate of the
court, — will not write his name officially, as Gov-
ernor of the State of Texas,' upon compulsion; the
sheriff of Travis County must enter the Governor's
mansion with his posse, and take possession of the
Governor and put him in jail, and keep bim there
until he will write his name upon the land patent.
If some of the numerous creditors of the State (and
numerous they may be, if they are not now) are
refused payment of their demands at the treasury,
they may send the Comptroller and the Treasurer of

The Supreme Court of Texas 69

the State to keep company with the Governor. But
suppose that, actuated by our traditional venera-
tion for the law, and those who administer it, these
high functionaries of the executive department yield
their judgment, obey the mandate, sign the patent,
settle the account, pay the claim out of the treasury ;
who administers the law, they, or the district judge %
Who 'take care that the laws are faithfully exe-
cuted;' the Governor or the district judge? Surely
not the Governor if he must obey the mandate of
the court in the performance of his official duty.
. . . A recognition of such appeal would render
the judiciary not co-ordinate, but superior, to the
executive department; contrary to the plain design
of the Constitution."

In 1862 Associate Justice Roberts resigned to ac-
cept the position of colonel of the Eleventh Texas In-
fantry of the Confederate army. George Fleming
Moore, then serving as colonel of the Seventh Texas
Cavalry, Confederate army, was elected to fill the
vacancy.

Judge Moore was born in Elbert County, Georgia,
July 17, 1822. In his youth his family removed to
Alabama, where he attended the university of that
State, as also the University of Virginia, though
he was a graduate of neither. He began the study
of law in his eighteenth year, and was thereafter
licensed to practice by Judge Shortridge, circuit
judge of Alabama. At that time he was distinguished
for the taciturn, retiring disposition and devotion to
study that characterized him in later life. In 1846
he removed to Texas, locating dn Austin in 1854.
Thereafter he settled at Nacogdoches, where he re-

70 The Supreme Cotjet of Texas

sided until his appointment as reporter of the Su-
preme Court of Texas, when he returned to Austin
and formed a partnership with Richard S. Walker.
Prom 1867 to 1874 he successfully engaged in the
practice of law in Austin. Judge Moore was noted
for his unaffected simplicity, modesty of personal
bearing, gentility of manner in his intercourse with
men, and the absence of that haughtiness assumed
by inferior persons in superior positions. He was
a distinguished advocate who relied upon diligent
study and the mastery of cases, rather than eloquent
appeals to courts and juries for the success which
crowned his professional labors. His clear under-
standing of points involved in his cases, his con-
cise logic and convincing reasoning were bulwarks
against which sophistry and empty eloquence spent
themselves in vain. Such was his remarkable mem-
ory that it was said of him that no one ever saw
him take a note of testimony during the most pro-
tracted trial, however complicated the facts or nu-
merous the witnesses. He is justly ranked with the
ablest Judges of the Supreme Court of Texas whose
judicial labors have enriched and enlightened our
judiciary. He enjoyed the reputation among his
brethren of the bench of being the best chancery
lawyer in Texas. It was conceded by his contem-
poraries that no jurist, living or dead, did more
than he to settle on a permanent basis vexed ques-
tions of land law, arising under our complex sys-
tem. "So long," says an eminent Judge, 1 "as the
bench and bar of Texas shall reverence those de-

iChief Jusitce A. H. Willie.

The Supreme Court op Texas 71

cisions of her Supreme Court, which are founded
upon correct principles of law and equity and en-
forced by unswerving logic; decisions which have
settled rights and titles according to the very truth
and justice of the case, so long will the name of
George E. Moore be venerated as one of the most
learned, able and eminent of those who have ex-
pounded the laws of the State and given its judiciary
an honored rank amongst the courts of the American
Union."

In Ex parte Goupland, 1 the majority opinion of
the court, rendered by Justice Moore, and the dis-
senting opinion of Justice Bell, are able and in-
structive discussions of the constitutional authority
then vested in the State to raise troops under the
Confederate conscription law for participation in
the Civil War. To his confessed intemperate denun-
ciation of martial law in this case, counsel for appli-
cant, 2 and reporter of subsequent volumes of the
Texas reports, ascribed his imprisonment as a victim
of that law. 3 It is lamentable that this incident,
added to differences of opinion respecting the then
paramount issue of secession, ruptured long stand-
ing amicable relations which had existed between
the reporter and several Justices of the Supreme
Court — particularly Justice Wheeler — and was pro-
ductive of a preface to a succeeding volume of the
Texas reports in which he criticised secessionist
members of the court in an adroit, polished and po-

136 Texas, 387.
2 Georg , e W. Paschal.
3Preface, 28 Texas, VII.

72 The Supreme Court of Texas

lite manner, more complimentary to his literary style
than his sense of propriety and good taste.

The able, courageous, and vigorous opinions of
Justice Moore in State vs. Sparks 1 and State vs.
Sparks and Magruder, 2 denouncing military en-
croachment upon the Constitutional jurisdiction and
powers of civil tribunals, reflect credit upon the
learning and courage of the distinguished Justice
who announced them. The cases originated in the
capture by defendant Sparks, military commandant
of Confederate forces at Austin, Texas, of certain
prisoners then in the custody of the sheriff of Travis
County by virtue of an order of the Supreme Court,
pending the hearing by it of a writ of habeas corpus.
The prisoners had been brought before the court
and an answer filed by a lieutenant, stating that
they were held in his custody at the date of the ser-
vice of the writ, as commandant of the military post
of San Antonio, by order of Major-General J. Bank-
head Magruder, commandant of the military district
of Texas, New Mexico and Arizona, on charges of
treason and conspiracy against the Confederate
States. Thereupon the court, for the purpose of
notifying Major-General Magruder of the issuance
of the writ, believing from the nature of the answer
that he was the real respondent, postponed the hear-
ing until he could present his answer ; the prisoners
in the meantime being remanded to the custody of the
sheriff of Travis County. Thereafter counsel ap-
peared on behalf of Major-General Magruder and

127 Texas, 627-635.
227 Texas, 705-715.

The Supreme Coukt of Texas 73

filed an answer stating that the prisoners were held
by his order as commandant of the military district
upon charges of treason and conspiracy against
the Confederate States. Upon application of his
counsel the hearing was continued until a later date,
when, all parties being present, a motion was filed
by counsel for Major-General Magruder to remand
the prisoners to the custody of the military author-
ities. The motion was supported by an affidavit of de-
fendant Sparks, stating that the prisoners had been
arrested by order of Lieutenant-General Smith, com-
mandant of the Trans-Mississippi department, to be
detained as prisoners under the provisions of an
act of the Confederate Congress suspending the writ
of habeas corpus, which order Major-General Ma-
gruder was compelled to execute. Accompanying
the motion was a letter from Major Sparks to the
court reciting substantially the same facts, and re-
questing the delivery of the prisoners to him; also
a letter from Edmond P. Turner, A. A. G., to re-
spondent's counsel, stating that he had been in-
structed by Major-General Magruder to say, "that
he wishes you to represent to the Honorable Judges
of the Supreme Court, now in session in Austin city,
that in directing the commanding officer at Austin
to detain the prisoners who were before the court,
and to remove them to Houston, no disrespect or dis-
courtesy was intended; but that he acted under the
law of Congress, and in accordance with the order of
the Lieutenant-General commanding the department.
Upon presentation of this motion to the court, on
application of counsel for applicants, the hearing
was postponed until the following day. On that day,

74 The Supreme Couet of Texas

and shortly before adjournment of the court, the
prisoners were forcibly wrested from the sheriff
by a detachment of armed soldiers, under an order
of the defendant Sparks. Upon these facts being
shown to the court by an affidavit of the sheriff, the
court immediately issued writs commanding him to
take said prisoners into his custody, and also to at-
tach the said Sparks and bring him before the court
to answer for the contempt committed against it
by his wrongful and forcible infringement of its au-
thority in taking the prisoners out of its custody
and from under its control. The writs being ex-
ecuted, on the following day the defendant Sparks
filed his answer, alleging that he had received an
order from Major-General Magruder, stating that
he had been ordered by Lieutenant-G-eneral Smith,
commanding the Trans-Mississippi Department, to
detain as prisoners the persons referred to as in
charge of the sheriff ; and having previously received
orders from the said Major-General Magruder to
place the escape of said prisoners beyond doubt by
placing a sufficient guard over them, and having
once furnished a guard which was rejected by the
sheriff, and feeling, under the orders of the officers
having a right to order him, that he was held by
them responsible for the safety and protection of
said prisoners; being of the opinion that they were
then constructively in the possession of the military;
being ordered to disregard the then existing writ
of habeas corpus, or any writ which might subse-
quently be issued ; meaning no contempt of the court,
but having a desire to discharge his duty as an officer
in obedience to orders ; and having first requested the

The Supreme Court of Texas 75

court to remand the prisoners to the military author-
ities through him, and the court having declined to
act on his request, but took it under advisement until
the next day, he felt it his duty to act as he did in
taking the prisoners. Attached to this answer was
an order from Major-General Miagruder, which after
reciting the act of the Confederate Congress sus-
pending the writ of habeas corpus, ordered Major
Sparks to disregard the writ issued on application
of the prisoners, and any other writ which the court
should subsequently issue, and retain the custody
of said prisoners.

"The facts we have recited," says the opinion,
"show that the prisoners heretofore named were in
the court, acting through its ministerial officer, for
their judicial action in a matter with which they are
charged by the Constitution and laws of the State.
It certainly needs neither argument nor authority
to show that there is no officer or tribunal, civil or
military, known to the law of the land, that could,
without a violation of law and a contempt of this
court, forcibly take from under its control, and with-
out its consent, said prisoners until final adjudication
of the court upon the matters before it. . . . The
continuance of a question by the court, that it may
be correctly determined by the aid of proper reflec-
tion and the examination of precedent and authority,
can only be regarded as a justification or extenua-
tion of such an act as was committed by the defend-
ant, when the civil tribunals of the country sit merely
for the purpose of registering the edicts of the mil-
itary authorities. The presentation of such matter
in an answer is rather an aggravation than an ex-

76 The Stjpkeme Court of Texas

tenuation of an outrage committed upon the author-
ity of the court. Nor can an illegal act be justified,
no matter how high the source from which it ema-
nates, by an order from superior authority. Mili-
tary officers are bound to obey all legal orders by
those by whom they are commanded. But there is
nothing better settled, as well by the military as the
civil law, than that neither offijcers nor soldiers are
bound to obey any illegal order of their superior
officers ; but, on the contrary, it is their bounden duty
to disobey them. The soldier is still a citizen, and
as such is always amenable to the civil authority.
We are of the opinion, therefore, that the order of
Major-General Magruder can furnish the defendant,
Major Sparks, no justification for his forcible in-
terference with the jurisdiction of this court, and
setting at naught its lawful orders. If, however,
he was in truth acting, as he claims, in obedience to
the orders of the major general commanding this
military district, it would certainly go far to excuse
him. While the officer must not obey an unlawful
order of his superior in command, yet, as in all
cases where he declines obedience to it he acts at his
peril, much indulgence should be shown in extenua-
tion of his obedience to such orders from those he
is ordinarily bound to obey. Especially should this
be so when the orders come to bim from such high
authority as that from which the one now in question
is claimed to emanate. But if these considerations
extenuate the act of Major Sparks, they do so only
by inculpating Major-General Magruder. If the act
was done in obedience to his order he is the principal
offender. Those by whom he has, if this be so, per-

The Supreme Court of Texas 77

petrated so glaring and palpable an outrage upon
the law and the authority of this court, are alike
subordinate in criminality, as inferior in rank. But
the high position of this officer and the important
duties with which he is entrusted by the country
forbid that we should indulge the supposition,
in a state of case upon which he has not
been heard, that 'he has converted the means
of discipline, intended for the defense of order, into
a means of disturbing that order, and thus has
turned the instrument against the power that ought
to wield it ; for it is the civil government alone that
stands for the State, and the military is only an
instrument that it uses as its judgment requires.'
Better far would it have been for the prisoners
who are in custody of the court, though doubly
guilty beyond all that has been charged against them,
to go unwhipped of justice than for the civil author-
ities of the State to be subordinated to military con-
trol, and made dependent upon the latter for the
exercise of their legitimate functions."

The court transferred the cause to Tyler, where
Major-General Magruder was cited to appear and
purge himself of contempt of court. In the opinion
rendered in the case at the Tyler term, Justice
Moore says:

"We trusted, however, that it was only necessary
to give Major-General Magruder an opportunity of
being heard to relieve him from so disreputable an
imputation and the court from the painful duty of
pronouncing the highest military officer of this de-
partment guilty of using the authority with which
he has been entrusted for the public welfare and

78 The Supkeme Cotjet of Texas

the defense of the State, as a means of violating the
law, interfering with and contemning the authority
and process of its courts, and thus violating social
order, which he should have been the first to have
upheld and sustained. The answer of Major-Gen-
eral Magruder, instead of exculpating him, places
him, if possible, in a still more unenviable light than
did the facts previously developed in the record.
. . . The pretext upon which Major-General Ma-
gruder undertakes to justify his interference with,
and attempting to set at naught the authority of
the court is mainly based upon the startling ground
that the court does not acquire jurisdiction of the
persons of the applicants for a writ of habeas corpus,
pending the hearing on its return. . . . The an-
swer, we believe, presents only the additional fact
that the defendant, when he gave the orders to his
subordinate officer to wrest from the court the pris-
oners who were in its custody, to disobey the man-
date by which they were held, or any writ it might
issue, and to remove them, under military escort, to
such place as he might direct, at the same time
caused a letter to be addressed to the court, in
which he assured it that he intended no contempt of
the court, but entertained for it the most profound
respect; that it was his pleasure, at all times, to
sustain the civil authorities ; and that it was also his
studious desire to avoid all conflict between the mil-
itary authorities and civil tribunals. Similar man-
ifestations of exquisite politeness by criminals, while
engaged in violating the law, will, perhaps, readily
suggest themselves to readers of fictitious literature,

The Stjpreme Cotjkt of Texas 79

but we doubt if its parallel can be found in the dry-
details of judicial proceedings."

The court regretted that the situation of the coun-
try, and the services required of Major-General Ma-
gruder at that crucial period, made it inadvisable
to punish him for his offense by fine or imprison-
ment, and, in consequence, discharged the rule by
entering a judgment against him for the cost of the
proceedings.

CHAPTER IV.

1864-1874.

Death of Chief Justice Wheeler— Oran M. Roberts, Chief
Justice — Reuben A. Reeves Succeeds Associate Justice Bell —
Constitution of 1866 Increases Number of Justices to Five —
Richard Coke, S. P. Donley, A. H. Willie, George F. Moore,
and George W. Smith Elected Justices — Sketches of the
Justices — Their Removal as "Impediments to Reconstruc-
tion" — Amos Morrill, A. H. Latimer, C. Caldwell, Livingston
Lindsay and A. J. Hamilton Appointed Justices — Sketches
of Justices Morrill, Hamilton and Lindsay — Fruits of Mil-
itary Despotism — New Rule on the Weight of Evidence — A
Critical Reporter — Constitution of 1869 Reduces Number
of Justices to Three — "Caveat Emptor!" — Moses B. Walker
Succeeds Justice Hamilton — James Denison Succeeds Jus-
tice Caldwell — Reorganization of Court Under Constitution
of 1869 — Lemuel D. Evans, Presiding Judge — Wesley Og-
den and Moses B. Walker, Associate Justices — Sketch of
Justice Evans — Justice Ogden Succeeds Presiding Judge
Evans — J. D. McAdoo Succeeds Justice Ogden — Ex-Parte
Rodriguez — The ' ' Semicolon Case ' ' — The ' ' Semicolon Court ' '
— Crowning Infamy — Prostitution of an August Tribunal —
Merited Ostracism — Just Oblivion.

The long, useful and most distinguished judicial
career of Justice Wheeler was ended by his lamented
death in Washington County, Texas, in April, 1864.
A contemporary, 1 who had once highly esteemed but
had become estranged from him through differences
in political opinions, attributed his death to melan-

iGeorge W. Paschal.

The Supkeme Coukt of Texas 81

cholia and remorse from the consciousness of having
espoused the wrong side of the secession issue which
had but lately engrossed the attention of his coun-
trymen — to the tortures of a guilty conscience which
drove him to end his life by his own hands! 1 It is
impossible, of course, to refute statements based ex-
clusively upon the belief of an individual, derived
from alleged facts not disclosed. Suffice it to say
that none of the distinguished biographers who has
enlightened us with a sketch of that great jurist
mentions the cause noted by this authority as con-
tributing to his death.

Oran M. Roberts, then in the field commanding his
regiment, was elected Chief Justice to fill the va-
cancy caused by the death of Justice Wheeler. At
the same election Eeuben A. Reeves defeated Asso-
ciate Justice Bell.

The State Constitution, adopted in June, 1866,
provided that the Supreme Court should consist of
five Justices, any three of whom should constitute
a quorum; that they should be elected by the quali-
fied voters of the State at a general election for
State and county officers ; that they should elect from
their own number a presiding officer, to be styled
the Chief Justice; that they should be thirty-five
years of age at the time of their election; should
hold their office for ten years, and that each of them
should receive a salary of at least four thousand
dollars, which should not be increased or diminished
during their term of office. 2 At an election held on
the first Monday in August, 1866, George F. Moore,

iPreface, 38 Texas, VTI.

2Acts of Eleventh Legislature, p. 11.

82 The Supreme Court or Texas

Richard Coke, S. P. Donley, A. H. WilMe, and
George W. Smith were elected Justices of the court, 1
George P. Moore being chosen Chief Justice in
the manner provided by the Constitution.

Richard Coke was born in Virginia in 1829. He
graduated with honor at William and Mary College
in 1849. In 1850 he was admitted to the bar, and
removed to Waco, Texas, where he successfully en-
gaged in the practice of law. He was appointed
District Judge in 1865, in which position he served
with distinction. In 1873 he was elected Governor
of Texas. Although he was elected by a majority of
over 50,000, the reconstruction regime — composed of
resident negroes, non-resident carpet-baggers, mili-
tary adventurers, camp-followers and soldiers of for-
tune, who had subverted representative government
in Texas and destroyed the liberties of the people,
acting through its political head, Edmund J. Davis,
by virtue of an infamous decision of a partisan Su-
preme Court, composed of foreign scalawags and
military satellites, holding the election void — opposed
by a show of military force the inauguration of Gov-
ernor Coke, and the assembling of the Legislature
elected at the same election. This action was the
expiring effort of an infamous regime to perpetuate
its maladministration, which it had sought to uphold
by dispatching military forces composed largely of
negroes, and known as "State Police," to political
meetings for the purpose of intimidating Demo-
cratic speakers and candidates during the progress

iHaving 1 been twice elected as a member of the court, Judge Roberts
did not offer' for re-election.

The Supreme Court of Texas 83

of the campaign. Perhaps at no time in the history
of Texas was there ever exhibited by its patriotic
citizens such courage as that displayed, in defying
armed ruffians and murderers who sought to throttle
free speech by their menacing presence. Although
Governor Davis issued a proclamation prohibiting
the assembling of the incoming Legislature, it con-
vened at the date prescribed by law, in the Capitol at
Austin, while an armed force, assembled by Davis
for forcibly resisting its meeting, mounted guard
in the basement below the legislative halls and in the
Governor's office. Citizens of Austin armed them-
selves and came to the support of the Democratic
Governor and Legislature. Governor Coke, in a
message to the Legislature in January, 1875, thus
describes the memorable event :

"The circumstances under which you assemble are
auspicious. How striking the contrast with those
which surrounded your first convention, one year
ago. Then darkness and gloom brooded over the
land, and over the hearts of the people. Forebod-
ings of danger to popular liberty and representative
government caused the stoutest and most patriotic
among us to tremble for the result. A conspiracy,
bolder and more wicked than that of Catiline against
the liberties of Rome, had planned the overthrow of
free government in Texas. The Capitol and its pur-
lieu were held by armed men under the command
of the conspirators; and the treasury and depart-
ment offices, with all the archives of the government,
were in their possession. Your right to assemble in
the Capitol, as the chosen representatives of the
people, was denied, and the will of the people scoffed

84 The Supreme Court of Texas

at and defied. The floors of the halls in which you
now sit had been examined by the conspirators, and
it had been ascertained that the armed force en-
trenched in the basement beneath could pierce them
with their missiles if necessary to attack you. The
President of the TJtoited States was being implored
to send troops to aid in overthrowing the government
of Texas, chosen by her people by a majority of over
fifty thousand. The local and municipal officers
throughout the State, in sympathy with the infamous
designs of these desperate and unscrupulous revo-
lutionists, taking courage from the boldness of their
leaders at the capital, were refusing to deliver to
their lawfully elected successors the offices in their
possession. A universal conflict of jurisdiction and
authority, extending through all the departments of
government, embracing in its sweep all the territory
and inhabitants of the State, and every question
upon which legislaive government is called to act
was imminent."

. It is well known history that upon the refusal of
President Grant to aid the conspirators they ceased
further resistance to the inauguration of Governor
Coke and the assembling of the legislative represent-
atives of the people.

In 1876 Governor Coke was re-elected, but a
month after his second inaugural was elected Uni-
ted States Senator. He assumed the duties of that
office on March 4, 1877, and served with distinction.
A giant in intellect and physique as well, a states-
man and patriot unexcelled in courageous devotion
to his country and to Constitutional government,
he was the most heroic figure which has appeared

The Supreme Court of Texas 85

upon the stage of political action in Texas or else-
where. His pre-eminent public services to the State
in the darkest, most despairing hours of its existence
will be gratefully remembered by a liberty-loving
people so long as the glorious record of his cour-
ageous, successful defense of his State and country-
men against the outrages and oppressions of ex-
otic conspirators and despotic renegades shall re-
main the brightest page in the political history of
Texas.

Asa Hoxie Willie was born in Washington County,
Georgia, October 11, 1829. Left fatherless in his
fourth year, his early training and education were
supervised by his mother, whose superior attain-
ments and maternal solicitude enabled her to prop-
erly perform that important task by educating him
in the Washington, Georgia, Academy. In 1846 he
removed to Texas and became a member of the fam-
ily of his maternal uncle, Dr. A. Hoxie, then resid-
ing at Independence, Texas. He studied law under
his brother, James Willie, in Brenham, during the
year 1848, and in 1849 was admitted to the bar un-
der a special act of the Legislature removing the
disabilities of his minority. Forming a partner-
ship with his brother, he engaged in the practice of
law at Brenham until 1857, when he removed to Aus-
tin to assist his brother in his duties as Attorney-
General of Texas and as Commissioner for the cod-
ification of the State laws. In 1858 he located at
Marshall, where he formed a partnership with his
brother-in-law, Alexander Pope. He removed to
Galveston in 1866, which thereafter became his per-
manent residence. Members of the bar and Justices

86 The Supreme Court op Texas

of the Supreme Court with whom he served concur
in their high estimates of Judge Willie's judicial
abilities and most excellent character. His exten-
sive personal popularity is attested in the circum-
stance that he was elected Chief Justice in 1882 by
a majority of 190,000 out of a total vote of 200,000.

"Judge Willie," says a distinguished member of
the court, 1 "was a conspicuous figure in the history
of the jurisprudence of Texas. . . . His opin-
ions, thoroughly considered, carefully prepared, and
happily expressed, exhibit the marks of a learned,
discriminating and well balanced judge. They are
'a fair and lasting monument to his memory.' Hav-
ing served with Judge Willie on the bench I feel
that I should say that no one could be more cour-
teous and kindly toward his associates; without
pride of opinion himself, he was always considerate
of their opinions, and in consultation always showed
himself a patient, dispassionate and impartial judge.
In social life Judge Willie was the most genial of
men. Great as must be our admiration for him as a
jurist, the esteem of those of us who knew him per-
sonally is greater."

Stockton P. Donley was born in Howard County,
Missouri, May 27, 1821. He received his education
in Kentucky, and upon being admitted to the bar
removed to Texas in 1846, locating at Clarksville,
Texas. The year following he located at Rusk,
where he formed a partnership with James M. An-
derson, and engaged in the practice, attaining dis-
tinction in the criminal branch of the law. In 1853

iChief Justice Gaines.

The Supeeme Court of Texas 87

lie was elected district attorney of the Sixth Judi-
cial District. He removed to Tyler in 1860, and in
1861 enlisted as a private soldier in Gregg's regi-
ment. He was promoted to the rank of lieutenant
for distinguished action at the siege of Fort Don-
elson, where, with his entire command, he was cap-
tured by the enemy. Thereafter he was exchanged
and assigned to post duty, in which he served until
the proclamation of peace. In 1868 he formed a law
partnership with Judge Oran Ml Eoberts, and
later with John L. Henry — business relations which
attest his professional learning and prestige at the
bar.

On September 10, 1867, George P. Moore, Chief
Justice, and Associate Justices Richard Coke, S. P.
Donley, A. H. "Willie, and George "W. Smith were
removed from office by an order of the military com-
mandant of the district of Texas, as "impediments
to reconstruction," and Amos Morrill, A. H. Lat-
imer, C. Caldwell, Livingston Lindsay, and A. J.
Hamilton appointed in their stead, Hamilton's ap-
pointment being made on the 4th of November of
that year. Morrill was designated Chief Justice of
the court as thus organized. In a list of these Jus-
tices, given by one authority, 1 the name of B. J.
Davis appears as one of the appointees, which prob-
ably was error, or if correct he was superseded by
Hamilton before the assembling of the court, as
the former's name is not mentioned in the list of
Justices in the official report.

This was the culminating act of a despotic regime

lOran M. Roberts.

88 The Supreme Court or Texas

in the subversion of constitutional government and
the destruction of the liberties of a defenseless peo-
ple by an ignoble conqueror; the crowning outrage
of a series of a like nature, tragic events in the
darkest and most despairing days of reconstruction
in Texas. So expeditious was the work of the mili-
tary authorities in suppressing Constitutional civil
government, that practically all judicial and minis-
terial officers of the State had been removed by the
end of September, 1867. As in all instances in which
the administration of the laws by civil courts failed
to conform to the preconceived ideas of law and
justice entertained by the local military command-
ant, the cases were removed by him to the military
tribunals and the offending judges removed from
office, it may readily be seen that the mailed hand
of military despotism then rested heavily upon the
civil judiciary. These military tribunals, estab-
lished under the authority of the Federal recon-
struction act of the National Congress, were com-
posed of military officers, ordinarily from five to
seven in number, designated by the commanding
officer, and clerks, bailiffs, and stenographers to re-
port the proceedings. The trial, while similar to
that of an ordinary court martial, was conducted in
a measure in accordance with the rules of evidence
and laws governing the crime of which the prisoner
was charged. Accused persons were allowed counsel
to conduct their defense, while the prosecution was
conducted by a judge advocate. Oral argument was
not permitted on the whole case at the conclusion
of the evidence, but was required to be submitted in
writing, read to the tribunal and left in its custody.

The Supreme Court of Texas 89

Arrests were made, and witnesses summoned both
for the prosecution and defense by a subordinate
officer, and witnesses were brought to the court at
the expense of the government. Bail was in the
discretion of the commander who ordered the trial,
but was seldom granted. Pending trial, prisoners
were confined in stockades under strong military
guard for safekeeping. The court was the judge
of the admissibility and the weight of the evidence.

"On the subject of the weight of the evidence,
judge advocates had and used a book purporting to
have been written by Judge Advocate-General Holt
at Washington, in which the rule of evidence was
laid down in substance, that the evidence of one
good, loyal citizen should have more weight than that
of any number of known rebels." 1

A reliable authority concedes, however, that offi-
cers of the tribunals were generally gentlemen who
acted under a high sense of honor, were possessed of
practical judgment in human affairs, and that it
could be said to their credit that usually they be-
lieved in allowing a course of proceeding that en-
abled innocence to be vindicated when it really ex-
isted.

Amos Morrill was born in Salisbury, Massachu-
setts, August 25, 1809. In his youthful employment
as schoolmaster he acquired sufficient means to at-
tend Bowdoin College, from which he graduated in
1834. Thereafter he removed to Nashville, Tennes-
see, and later to Murfreesboro, where he engaged
in teaching school for two years. He subsequently
returned to Massachusetts, studied law in the office

lComprehensive History of Texas, Vol. 2, p. 173.

90 The Supreme Court op Texas

of Robert Cross, at Amesbury, and after mastering
the "rudiments of common law" removed to Texas,
locating at Clarksville, where he practised law. In
1856 he came to Austin, where he was associated
with A. J. Hamilton in the practice. He was a bitter
opponent of secession, and an uncompromising
Unionist. At the outbreak of the Civil War he
refugeed in Mexico. Returning from thence to Mas-
sachusetts, during the last year of the war he was
connected with Federal employment in the New
Orleans custom house, where "he anxiously awaited
the time when he could return to his home in Texas. ,n

At the close of the war he returned to Austin. In
1872 he was appointed United States District Judge
of the Eastern District of Texas, and settled in Gal-
veston. Ill health necessitating his resignation from
the bench in October, 1883, he returned to Austin,
where he died March 5, 1884.

Livingstone Lindsay was born in Orange County,
Virginia, on October 16, 1806. His grandfather,
who emigrated from Scotland, was a pioneer settler
of the State of Virginia. The parents of Judge
Lindsay were devoted members of the Episcopal
church, as is shown in the circumstance that his
mother, in his infancy, carried him on horseback
■forty miles to the nearest church of that denomina-
tion to receive the rites of baptism. He was edu-
cated in the University of Virginia, at Charlotts-
ville, and upon graduating from that institution
removed to Hopkinsville, Kentucky, where he stud-
ied law, was admitted to the bar, and engaged in the

iLynch's Bench and Bar of Texas, p. 153.

The Supreme Court op Texas 91

practice for a short time. Thereafter he removed
to Princeton, Kentucky, where he resided for many-
years, being employed for several years as an in-
structor in the college at that place. In 1860 he
removed to Texas, locating at LaGrange, Texas,
where he engaged in the practice of law. In the
latter years of his life he was District Judge of the
district then composed of Colorado, Fort Bend,
Washington, Austin and Wharton counties. His
last public service was in the capacity of County
Attorney of Fayette County. He died at La-
Grange, Texas, in 1892, at the advanced age of 87
years. With the possible exception of Justice Ham-
ilton, whose active service upon the court was lim-
ited, Justice Lindsay was the ablest member of the
Supreme Court as constituted during the period of
his judicial labors. It is distinctly creditable to the
good name and memory of this able and upright
judge that none of his opinions is marred by re-
flecting the passions and prejudices of contending
political factions which prevailed during the un-
happy period immediately succeeding the Civil War.
Andrew Jackson Hamilton was born in Madison
County, Alabama, January 28, 1815. He was edu-
cated in the common schools of that State. In 1846
he removed to Texas, locating at LaGrange, where
he successfully engaged in practising law. In 1849
he was appointed Attorney-General by Governor
Bell, when he removed to Austin, which was there-
after his permanent home. He represented Travis
County in the State Legislature in 1851, and also
in 1853. He was presidential elector on the Buch-
anan ticket in 1856. In the political campaign of

92 The Supreme Court of Texas

1859, as an independent candidate, he defeated T. N".
Waul, Democratic nominee for Congress. In 1861
he was elected to the State Senate, but as Texas had
then aligned itself with the Confederacy, he declined
to qualify for that office. In 1862 he journeyed to
Washington, via Mexico, and was immediately ap-
pointed brigadier-general in the Federal army. In
1865 he was appointed Provisional Governor of
Texas by President Johnson. In the political cam-
paign of 1870 he was the Conservative candidate
for Governor against E. J. Davis, but was defeated
by the latter. He died in Austin in April, 1875.

He is described as "an able advocate at the bar,
an animated, earnest, and impressive speaker,"
whose "oratory was logical, persuasive and forcible
to a degree that few speakers in Texas, if any, have
ever been able to excel, and possessed a genial man-
ner that rendered him personally popular with all
classes." He was among the ablest men who have
figured in Texas history. Of strong convictions, he
was the most formidable of the opponents of seces-
sion and the ablest adviser of the reconstruction
regime in its military rule in Texas. While his
policies and actions in those unhappy days have been
subjected to severe censure, both by historians and
those who suffered from his power, no friend, enemy
or adversary has failed to concede him the most
splendid abilities and forceful personality of any of
those aligned with him in the advocacy of policies
he espoused and so ably defended.

Between his appointment, on November 7, 1867,
and his retirement from the bench, between the
Tyler and Austin session of the court in 1869, it

The Supkeme Court of Texas 93

appears that Justice Hamilton served actively on
the court for only one session — the Tyler term, 1869.
As he was a member of the Constitutional Con-
vention of that year, in which he rendered the State
distinguished service in opposing the "iron-clad
oath," proposed by radical members of his party
in that body, 1 it is presumed that his able services
at that time were more valuable in the political
field than in the circumscribed limits of the forum. 2
The professional attainments of the Justices of
the court as then constituted, appear to have sig-
nally failed to impress the official reporter charged
with the duty of giving its opinion's publicity.
While due allowance should be made for his personal
estimate of Judges who but lately had removed
him from office, official documentary evidence sub-
mitted in support of his convictions is somewhat
convincing. 3

lOran M. Roberts, Comprehensive History of Texas, pp. 32-54.

2lb., p. 176.

3"Tlie State of Texas: In the Supreme Court of Texas Austin
November 4th. A. D. 1869 Present. Hon. Ch. Jus. Morill & Asso. Jus.
Lindsay & Latimer. It is ordered by the court that the reporter of
the decisions, in reporting' the statement of facts, shall state so much
only as may be absolutely necessary to show upon what the opinion
is based ; and that whenever the opinion includes this statement, that
no further statement be published; also that the briefs of counsel as
published in the reports be limited to the legal points and the author-
ities cited." This specimen, which is printed just as written, shows
what would have been the character of my books had their order been
obeyed. . . . Had I desired to retaliate, I should have printed these
gentlemen's opinions just as they wrote them, and have left them to
take care of their own literary fame. But could I have allowed them
thus to try their own hands at reporting, I should have spared them
after I saw the effect which the learned Chief Justice's opinions, after
leaving the hands of an experienced proof reader, had upon his nerves.
I thought he was satisfied with his own powers of narrative and rhet-

94 The Supreme Court of Texas

The fact that the Judges thus criticised left the
court before the publication of the volume containing
the reporter's criticism, probably forestalled con-
tempt proceeding in which more than one judicial
skeleton would likely have been exhibited to an
admiring public.

The Constitution of 1869 provided that the Su-
preme Court should consist of three Judges, any
two of which should constitute a quorum, to be
appointed by the Governor by and with the ad-
vice and consent of the Senate, for a term of nine
years; that the judges first appointed under such
constitution should be classified by lot, so that the
term of one of them should expire at the end of
every three years, and that the judge whose term
should first expire, should be presiding judge. Ap-
peals to the Supreme Court in criminal cases were
not permitted unless, upon an inspection of the
transcripts and records, a judge thereof believed
that some error had been committed by the trial
judge. It was provided that the court should hold
annual sessions at the State capital only. Salaries
of justices of the court were fixed at not less than
$4,500 per annum, which should not be increased
or diminished during their term of office. 1 Upon
the adoption of this constitution, the provisional
government sold the Supreme Court library at

oric, and, as requested by himself, I corrected his inaccuracies, as
every experienced editor always does with inexperienced writers. I
only regret that the new reporter, whoever he may be, should fall
heir to a few of the brilliant opinions which I had hoped to have the
honor of giving the public. Farewell, provisionals. Requie&cat in
pace. — George W. Paschal, Preface 31st Texas.
lArticle V, Sec. I, Const. 1869.

The Supreme Cotjet of Texas 95

Galveston to a St. Louis book dealer, and would
have sold the one at Tyler but for the suggestion
of the lawyers to the prospective purchaser that he
"might not find the books." 1

Justice Hamilton resigned in November, 1869,
and on December 1st of that year, Moses B. Walker
was appointed to fill the vacancy. On February
21, 1870, Justice Caldwell was removed by the
commandant of the military district of Texas, and
James Denison appointed as his successor. It is
noted that the apointment of Walker was made
"while yet he was colonel in the army." 2

The Supreme Court as organized under the Con-
stitution of 1869, was composed of the following:
Lemuel D. Evans, Presiding Judge; Wesley Ogden
and Moses B. Walker, Associate Justices. This
court entered upon its judicial labors on the first
Monday in December, 1870.

Lemuel Dale Evans was born in Tennessee in
1810. In 1843 he removed to Texas, locating in
Fannin County. In 1845 he was elected delegate to
the .Annexation Convention. He was elected to
Congress from the Eastern District of Texas in
1855. He opposed secession and vigorously cham-
pioned the Union, but rendered valuable service in
connection with A. J. Hamilton, and other conserva-
tives of his party, in defeating the disfranchisement
'of citizens who could not subscribe to the "iron-
clad" oath prescribed by Federal authority. In
1875 Mr. Evans was appointed United States Mar-

iComprehensive History of Texas, Vol. 2, p. 195.
^George W. Paschal.

96 The Sttpkeme Cottkt of Texas

shal for the Eastern District of Texas, in which
office he served until his death on July 1, 1877.

In a spirited address delivered in the Convention
of 1845, he declared that he candidly believed "the
whole contrivance of courts of judicature is a
fraud upon the community;" that the whole system
"is an invention of the darker ages of the world
and productive of the greatest injury." He de-
clared that there was "no question of right or wrong
which a savage is not as competent to decide as the
ablest judge of the land; no question which affects
the rights of property or the person, which the un-
tutored savage can not determine as well as a Storey
or a Marshall. And why? Because questions of
right and wrong depend upon feeling, and not upon
reason. A man who feels right, no matter how
uncultivated his mind may be, is as good a judge
of such matters as the most learned men that ever
sat upon the bench." He declared that any man
who taught country schools, and understood common
laws of syntax was as well qualified to understand
the constitutionalty of a law as a Daniel "Webster.
He further contended that the ablest men in England
and the United States had ascertained to a mathe-
matical certainty that the fees of lawyers and the
costs exceeded greatly the value of the things in
controversy. In view of these alleged facts, he con-
tended that courts and lawyers should be suppressed
in favor of tribunals for the abitrament of all human
differences in conformity to the benign principle of
the Golden Rule.

In September, 1873, Presiding Judge Evans re-
tired from the court at the expiration of his term,

The Stjpkeme Cotjet of Texas 97

and Justice Ogden was promoted to that position,
while J. D. McAdoo was appointed Associate Justice
to fill the vacancy thus caused.

It was reserved to the court as thus organized
to place the only blot upon the pure, honored and
exalted reputation of the Supreme Court of Texas
which has marred the splendor of its history from its
creation to the present time. In the judicial annals
of no other country has there ever been a more la-
mentable, shameless prostitution of a court of justice
to the interest of lawless political conspirators
against constitutional government, the right of suff-
rage, and the liberties of a free people than that dis-
closed in Ex-Parte Bodriguez, 1 decided by this court.

The State election held on December 2, 1873, was
the most memorable in the history of Texas. In
that election the Republican ticket headed by B. J.
Davis, Governor, and candidate for re-election, was
opposed by a Democratic ticket under the leader-
ship of Richard Coke, Democratic nominee for
Governor in opposition to Davis. Citizens of Texas
who had long suffered from radical military rule
under an infamous carpet-bag regime, courageously
rallied to the support of the Democratic ticket for
the restoration of constitutional government and
the overthrow of Republican misrule; while an in-
considerable number of white Republicans and prac-
tically all of the recently enfranchised negroes of
the State vigorously championed the cause of Davis.
Unterrified by the menacing presence of the State
Police under the command of Davis, posted by his

139 Texas, 706.

98 The Supreme Cotjbt or Texas

orders at the principal voting places to intimidate
Democratic voters, the great body of the reputable
citizenship of the State marched to the polls and
registered its condemnation of the rule of lawless
politicians and exotic adventurers which threatened
the ruin of the State and subversion of the liberties
of its people. The result was an overwhelming
victory for the Democratic ticket, which was elected
by a majority of over 50,000 votes. "After the
election," says a reliable authority, "when it was
discovered that the Democratic ticket had been
elected by a large majority, something had to be
done to enable Governor Davis to hold the office of
Governor." 1 Out of this necessity originated the
Rodriguez case.

On the 16th of September, 1873, one Joseph Rod-
riguez, a Mexican, applied to Wesley Ogden, Pre-
siding Judge of the Supreme Court, for a writ of
habeas corpus, alleging that he was illegally re-
strained of his liberty in Travis County, by a deputy
sheriff of Harris County, Texas. The writ im-
mediately issued, and the next day John Price, a
deputy sheriff of Harris County produced the body
of Rodriguez in court, admitting in his return that
the arrest and detention of the prisoner under his
authority as deputy under one A. B. Hall, sheriff
of Harris County, and that he detained the prisoner
under authority of a warrant issued by John Mc-
Donald, a justice of the peace of Harris County,
upon a charge of illegally voting more than once at
the election held on December 2, 1873. The State

iO. M. Boberts' Comprehensive History of Texas, Vol. 2, p. 198.

The Supreme Court of Texas 99

was represented on the habeas corpus hearing by
Frank M. Spencer, district attorney for Harris
County, appointed by reason of the absence of the
attorney general, and a bar committee composed of
George F. Moore, M. A. Long, C. S. West, Thomas
E. Sneed, W. M. Walton, and A. W. Terrell. Coun-
sel for the State filed a motion alleging that the court
had no jurisdiction to try the case, because they were
informed and believed, and charged the fact to be,
that the case was fictitious, or essentially so, origi-
nally instituted and prosecuted not in the interest of
the prisoner in fact, but in behalf of certain other
persons to extort from the court an opinion as to
the constitutionality of an act regulating elections,
approved on the 31st of March, 1873. The court
was asked to diligently inquire into the facts con-
tained in an affidavit of George Goldthwaite, at-
tached to the motion in support thereof, to the end
that fraud might not be practised upon the court,
the law violated, and the course of justice diverted
to the accomplishment of individual purposes, illegit-
imate in character, and which, known, should not be
recognized or aided by courts of law and justice. It
was alleged that counsel was informed and be-
lieved that there was no case pending against the
prisoner, that no warrant had been legally issued
for his arrest and that he was never legally arrested.
The affidavit of George Goldthwaite, in support
of the motion stated, in substance, that deponent
was informed that A. B. Hall had employed A. J.
Hamilton to attend the criminal cases then about
to be brought with a view to testing the constitu-
tionality of the election law and the legality of the

100 The Supreme Coitkt op Texas

late election; that deponent had been informed by-
one Geronimo Perez that the prisoner had been for
a month or six weeks in the employ of A. B. Hall;
that John Price, the officer who made the arrest was
known to affiant to have been in the employ of A.
B. Hall, being his deputy; that the said Hall was a
defeated candidate for sheriff of Harris County;
that affiant believed that the said Hall was paying
all the expenses incident to the hearing, and the
said Hall, as affiant believed, paid the expenses of
John W. McDonald, a witness, to come from Hous-
ton to Austin, to attend the hearing, the money for
that purpose being paid the witness by Hall, in the
presence of R. O. Love, of Harris County. Mr.
Spencer, counsel for the State, in support of the
motion, stated that as district attorney for the
county in which the alleged offense was committed,
he had, in connection with the grand jury, carefully
examined the charge against the prisoner; that no
indictment had been returned ; that he was convinced
that the process of law had been prostituted in mak-
ing the arrest, to the accomplishment of individual
purposes, and this with the consent of the prisoner,
whose arrest he believed to be simulated and not
real. He urged the court's permission to expose
the fraud, asking him to procure witnesses; and if
this were not allowed, he asked as the law officer
for the State appointed for the purpose of the trial,
that Rodriguez should be discharged from custody.

M. A. Long, of counsel for the State, in the course
of his argument in support of the motion said :

"The honor of the State, the honor and fair fame
of the judicial department of her government, the

The Supreme Court op Tis^BiA^ v>101

honor and reputation of this tribunal of final re-
sort, and the honor and reputation of the present
incumbents of the bench of this august tribunal, not
only for ability and legal learning, but for purity,
impartiality and fairness, seem to be more or less
involved in the decision of this motion. * * *
When the singular manner in which the case has
been brought before this court, and all the suspicious
circumstances already disclosed, are carefully con-
sidered, this court is not only justified in believing
counsel sincere in their conviction of being able to
obtain the proof, but they are also sufficient to arouse
in the mind of the court very strong suspicions — if
not convictions — that an attempt is being made to
impose upon its legitimate jurisdiction by aiming
to extort from this court a political dictum for
party purposes upon a fictitious case — a gross con-
tempt of any court, demanding prompt punishment.
. . . Even if the court possessed constitutional
power to decide the question here sought to be pre-
sented . . . such power could only legally be
exercised in the determination of a real, and not a
fictitious case. To attempt its exercise in a fictitious
case would plainly amount to an attempt to usurp a
power not conferred by the constitution upon this
court, which would as plainly amount to a high
crime worthy of impeachment. If it is said in op-
position to this suggestion, that upon the trial of an
impeachment it would be very difficult, if not im-
possible, to prove that this court knew the case to
be fictitious, and therefore did not wilfully and
corruptly attempt to usurp a power not granted in
the constitution, still it is to be considered whether

102 The Supreme Court of Texas

a refusal to hear proof upon the very point in
question would not amount to that kind of wilful
ignorance which neither law nor reason will tolerate.
Wilful ignorance is, in all judicial tribunals, re-
garded as equivalent to guilty knowledge — no better,
indeed, than a fraudulent and corrupt evasion or
subterfuge — an aggravation rather than a mitiga-
tion of guilt. ... I feel it to be my duty to this
court to earnestly protest against this attempt to
bring down the judicial ermine to the level of trick
and device, to stain it in the cesspool of fraud and
party politics. For the honor of the court and the
State I speak."

Upon the overruling of the motion by the court,
Mr. Spencer said: "I cannot longer represent the
State under the circumstances, and now respectfully
announce my withdrawal from the case."

Counsel for the prisoner thereupon filed a motion
asking the discharge of the prisoner upon the ground
that the return to the writ of habeas corpus showed
no just or legal cause for his further detention.
Counsel for the State moved the court to strike the
motion of State's counsel from the record, which
the court promptly overruled.

A. W. Terrell, of counsel for the State, delivered
an able and forcible argument at the close of the
evidence in the main case.

"I will not comment," said he, "upon the testi-
mony of the miserable creatures placed upon the
stand by order of the court, who testified to their
own infamy while attempting to make a case against
Eoderiguez. Two of them in Houston yesterday —
in Austin today — accidental bystanders, listening to

The Supreme Coubt of Texas 103

proceedings conducted in a language which they
could not understand! How came they here? Who
brought them? They came without process, and I
say in my place, that none of the counsel represent-
ing the State knew even of their existence until
they were placed upon the stand at the suggestion
of Judge McDonald and by order of this court."

This causes one to indulge in speculation as to
about what counsel would have said of the witnesses,
had he really undertaken to discuss them. In the
course of a lengthy review of numerous authorities,
Mr. Terrell said :

"If one single case can be found, from the earliest
dawn of American jurisprudence until now, in which
any court has ever held illegal an act under which
a legislature was chosen, and under a constitution
like ours, I will admit that I have misunderstood
the theory of our government. If the Legislature
can hold the general election law constitutional by
seating its members, and this court can construe
it as unconstitutional in passing upon the election
of other officers, the constitution will cease to be
a bond of order, and become a bond of anarchy. The
absence of such claim of power for the courts, until
now, for so long a period and through so much
partisan strife, should be conclusive against its
exercise."

Addressing himself to the attitude of one of the
counsel for the prisoner, 1 Mr. Terrell said :

"Three times have the people of Texas since the
surrender attempted to establish civil government.

^Hamilton.

104 The Supreme Court of Texas

Once they were remanded by the Federal power to
a condition of territorial vassalage ; once, if we may
believe the eloquent adversary, they were defrauded
of their choice by a military commander; and now
he himself leads the van in the third assault, and
attempts, by the more insidious approaches of ju-
dicial construction, to stifle again the popular voice
and substitute a reign of anarchy. Why, on the
very eve of the meeting of the people's representa-
tives, is this strange haste shown to test this ques-
tion ? Why does counsel for Rodriguez assume upon
the facts the position of a prosecutor? These are
questions which all can answer. . . . By as much as
the blessings of social order, now in jeopardy, are the
dearest man can enjoy upon earth, by as much I
earnestly ask you to consider well the judgment
you are about to render. Your province is to pre-
serve and build up, not to destroy. Let not anarchy
take the place of order, and violence supplant quiet
and security."

Mr. Hamilton, of counsel for the applicant, after
discussing authorities believed to sustain his con-
tention that the court possessed jurisdiction of the
case and constitutional power to declare the election
void in the case at bar, said :

"Gentlemen on the other side have gone outside
of the constitutional question, and called our at-
tention to the 50,000 Democratic majority, the over-
whelming expression of the will of the people, and
the grave consequences likely to arise from opposing
that expressed will. Are we here for the purpose
of trying the Democratic or Republican parties ? Is
the question before the court as to which is the

The Supreme Court op Texas 105

strongest party? Were I to make such an argument,
I should bow my head in submission were your
honors to stop me, rebuke me, and even fine me.
I am said to be here surreptitiously, to hurt some-
body who may have been elected. I do not know
what effect a decision in our favor may have upon
the cases of persons recently elected. I do not know,
and I care as little as I know. If I did know, I
should fearlessly do my duty in the premises. . . .
I am charged with opposing and disturbing these
gentlemen and their partisan friends in the past,
and now they say I am here again for the same
purpose. I do not take my lessons in patriotism
from gentlemen, who, in 1861, were members of a
mere mob, styling itself a state convention, which
was called by about forty persons, and which gloried
in overthrowing the State government and tearing
down the United States flag. I never fought against
the flag of my country. Neither did I learn these
lessons in a foreign land, in Mexico, under a carpet-
bag emperor, who was afterwards shot for inter-
fering with the constitutional rights and liberties
of a free people. As to the indirect interest your
honors are charged by opposing counsel with having
in the decision of this question, it seems to me that
they have sought to appeal to your timidity, to your
cowardice. But I am satisfied that the gentlemen
who fill this honorable bench are men — physically,
intellectually, morally — who will scorn such un-
worthy flings and do their duty regardless of all
outside influence. You are told that society will
be disrupted, and that anarchy and revolution will
follow, if your decision should be in accordance with

106 The Supreme Court of Texas

our argument. It would have been well had these
gentlemen been equally solicitous a few years ago
about the peace of society and the disruption of the
government."

The constitutional question involved in the case
grew out of the construction of the act of March
31, 1873, in its relation to the provisions of Article
III, Section 6, of the Constitution of 1869. The
act provided that each precinct of the justices of
the peace of the counties of the State, as then estab-
lished should constitute an election precinct, 1 and that
"all the election in this State shall be held for one
day, only at each election, and that the polls shall be
open on that day from eight o'clock a. m. to six
o'clock p. m." 2 Article III, Section 6, of the
constitution provided: "All elections for State,
district, and county officers shall be held at the
county seat of the several counties, until otherwise
provided by law; and the polls shall be open for
four days, from eight o'clock a. m. until four o'clock
p. m. of each day." 8

In the lengthy opinion of the court delivered
by Justice Walker, it was held that the election was
void, and that Rodriguez should be discharged be-
cause he was not guilty of any offense in voting
more than once at an illegal election; that the con-
vention in framing the election provision of the
constitution had two objects in view, the first of
which was that elections should be held at the county
seats, and the second was that the polls should be

iGeneral Laws 13th Leg., p. 20.

2IJ>., p. 23.

sLaws of Texas ( Gamaliel's Ed.), Vol. 7, p. 7.

The Supreme Court of Texas 107

kept open for four days; that it was certain that
the convention intended the two objects to be
distinct and independent of each other, by the fact
that there was a semicolon placed between them;
that the permission given the Legislature in that
section of the constitution to change the voting
places, did not extend beyond the semicolon, nor
empower it to change the time the polls should re-
main open, from four days to one.

While the evidence in the case was conflicting, the
official poll lists contradicted the testimony of wit-
nesses tending to prove that Rodriguez voted more
than once at the election, as they failed to
disclose that important fact, and were certainly en-
titled to more weight than the evidence of witnesses
conveniently "discovered" among spectators at a
trial conducted 167 miles from the scene of the
alleged occurence, not present in response to the
command of judicial process, wholly unknown to
counsel for the State, and placed upon the witness
stand by order of the court. The indecent haste
which characterized the hearing, disclosed in the
peremptory refusal of the court to grant counsel
for the State a reasonable postponement of the trial
to procure witnesses from Houston to attend a hear-
ing at Austin of habeas corpus writ issued the day
before; the application to the Supreme Court at
Austin for relief which the resident district judge at
Houston was equally empowered to grant; the sig-
nificant circumstance that a common Mexican of-
fender was enabled to command the services of an
array of distinguished counsel, including one of the
ablest in the State, who had but recently served as

108 The Supreme Court of Texas

its provisional Governor; the invocation of the rule
prohibiting the disclosure of communications be-
tween attorney and client by one of the counsel for
applicant, when asked to disclose the name of the
person who employed him in the case, the offer of
another of his counsel to answer that question should
the court permit him to do so, and the prompt
action of the court in declining to grant such per-
mission are potent circumstances sufficiently con-
vincing that matters of graver importance than
the mere illegal restraint of a Mexican were involved
in the case, and that it was a lawless attempt to
expeditiously obtain a decision of the court of last
resort through the medium of a fictitious case. The
novel circumstance that the position of counsel
became reversed in this remarkable trial — counsel
for the State vigorously championing the cause,
proving the innocence of the prisoner, and demand-
ing his discharge; while counsel for the prisoner
with equal vigor asserted his guilt and resisted his
discharge, as well as the fact that the Mexican and
his cherished liberty were all but forgotten in the
heat of the controversy, leave no lingering doubt in
the mind of any unprejudiced person of the real
purpose of the proceeding.

"This decision," says an authority 1 in commenting
on the Rodriguez case, "was in harmony with that
administration, but deserves to be noticed as stand-
ing in disharmony with every other decision that
was ever pronounced by our Supreme Court in,
this : that no one except a few officers interested in

iO. M. Roberts' Comprehensive History of Texas, Vol. 2, p. 201.

The Supreme Court of Texas 109

it ever paid any respect to its binding authority;
no lawyer would ever cite it as authority in any
court; no judge would ever refer to it as a judicial
precedent ; and therefore it stands solitary and alone
upon the records of that court, to be remembered
only with the regret that any such a decision was
made by a court that has uniformily possessed the
confidence of the people of Texas. It is known
in our judicial history as the 'Semicolon Decision,'
and the judges who rendered it are known among
lawyers as the 'Semicolon Court.' So odious has it
been in the estimation of the bar of the State, that
no Texas lawyer likes to cite any case from the
volumes of the Supreme reports which contain the
decisions of the court that delivered that opinion,
and their pages are, as it were, tabooed by the com-
mon consent of the legal profession."

This decision was responsible for the action of
Governor E. J. Davis in offering armed resistance to
the inauguration of Governor Coke, and the assem-
bling of the Democratic Legislature elected by the
people, so graphically outlined in the latter 's message
to that body and which, for a time, threatened the
precipitation of an armed collision between con-
tending factions, the far-reaching tragic conse-
quences of which would have been appalling.

CHAPTER V-

1874-1885.

Amendment to Constitution of 1869 Increases Number of
Justices of Supreme Court to Five — 0. M. Roberts, Chief
Justice; Reuben A. Reeves, Thomas J. Devine, George F.
Moore, and "William Pitt Ballinger, Associate Justices —
Peter W. Gray Succeeds Justice Ballinger — R. S. Gould
Succeeds Justice Gray — Sketch of Justices — Bledsoe vs.
International & Great Northern Railroad Company — Keuch-
ler vs. Wright — Able dissenting Opinion by Chief Justice
Roberts — Horbach vs. State — "Hip-Pocket-Movement" Self-
Defense — John Ireland Succeeds Justice Devine — Sketch of
Justice Ireland — Yaney vs. Batte — Justice Moore's Dissent-
ing Opinion — Texas Land Company vs. "Williams — Model
Brief — Justice Moore Succeeds Chief Justice Roberts — M.
F. Bonner Elected Associate Justice — Sketch of Justice
Bonner — Ex-Parte Towles — Peck vs. San Antonio — "Semi-
colon Court" Overruled — Henderson vs. Beaton — Stone vs.
Brown — Milliken vs. City Council of "Weatherford — Hu-
mane Decision — Justice Gould Succeeds Chief Justice Moore
— John "W. Stayton Appointed Associate Justice — Sketch of
Justice Stayton — Ball, Hutchins & Company vs. Lowell —
Dissenting Opinion by Justice Stayton — Asa H. "Willie Suc-
ceeds Chief Justice Gould — Sketch of Justice "Willie —
Charles S. "West Succeeds Justice Bonner — Sketch of Jus-
tice "West — Houston & Texas Central Railroad vs. Simpson
— First of the "Turn-Table" Cases — Faulkner vs. House —
"Public History" — Jones vs. George — Belo vs. "Wren.

An amendment to the Constitution of 1869, adopt-
ed December 2, 1873, 1 provided that the Supreme
Court should consist of one chief justice and four
associate justices, appointive by the Governor with

lActs of 14th Legislature, p. 23.

The Supreme Court of Texas 111

the advice and consent of the Senate, who should
hold their offices for the term of nine years: that
vacancies should be filled by appointment of the
Governor for unexpired terms; and that the court
should hold annual sessions at the capital and two
other places in the State.

On January 27, 1874, Governor Coke appointed
the following justices of the Supreme Court: Oran
M. Roberts, Chief Justice ; Reuben A. Reeves, Thom-
as J. Devine, George F. Moore, and William P.
Ballinger, Associate Justices. Justice Ballinger
was commissioned February 3, 1874, and resigned
the same day. Peter W. Gray was commissioned
on February 11, 1874. Justice Gray resigned on
April 13, 1874, and, on May 5, 1874, R. S. Gould
qualified as his successor.

By an act approved February 24, 1874, 1 it was
provided that the Supreme Court should hold its
sessions once in every year at Austin, Galveston,
and Tyler.

Thomas J. Devine was born of Irish parentage,
at Halifax, Nova Scotia, in 1819. In 1835 he re-
moved to Tallahassee, Florida, where he spent three
years acquiring a common school education, and
a knowledge of the Latin anc 1 French languages.
From 1838 to 1840, he studied law in the office of
Judge Perkins Smith, of Woodville, Mississippi,
who was afterwards Chief Justice of that State.
In the autumn of 1840 Mr. Devine entered the law
department of the Transylvania University at Lex-
ington, Kentucky. In 1844 he removed to Texas,

lActs of 14th Legislature, p. 13.

112 The Supreme Court of Texas

and shortly thereafter located at San Antonio. He
was elected city attorney of San Antonio in 1845,
serving in that position until he was elected district
judge, in 1851. Referring to the valuable services
rendered by him to the city of San Antonio, a con-
temporary 1 says :

"A combination of wealthy and influential citi-
zens sought to appropriate the eight leagues of
land surrounding San Antonio which had been
granted to the city by the King of Spain. During
the revolution of Arrendondo, early in the century,
the grant was buried on the eve of battle by the
city fathers; and all who knew its secret burial
place were killed in a battle fought on the Medina.
More than twenty years afterwards it was found,
and the faded writing, rendered illegible by time,
was restored by Antonio Navarro and Juan Seguin.
The grant was finally destroyed by the troops of
Santa Anna when the Alamo fell. To the laborious
search of Judge Devine San Antonio is indebted
for the establishment of that crown grant to more
than 30,000 acres of land. On the final trial before
me in 1858 or 1859, the controlling case was tried,
when with the city records and archives from the
Missions, the strange and romantic story of San
Antonio was revealed."

Judge Devine served upon the district bench with
marked distinction until 1861, when, after having
been a delegate to the Secession Convention, he was
appointed a Confederate States judge. During the
dark days of reconstruction succeeding the Civil

i Judge iA. W. Terrell.

The Supreme Court of Texas 113

"War, lie was thrown into prison for espousing the
cause of his countrymen against military oppression,
where he remained for months, "guarded by bay-
onets in the hands of newly enfranchised negroes."
It is said by his brother Judges and the bar that
Judge Devine was chiefly distinguished for his
broad, comprehensive common sense, which he
brought to the solution of all questions of first
impression; grasping, as if by intuition, the justice
in each case, and for exhibiting little patience when
technical difficulties were interposed to obstruct the
course of justice. Contemporaries who knew him
best have been pleased to record Judge Devine 's
distinguished public services to his country in the
lowering days of the Republic, in the darkest hours
of reconstruction when, in sorrow and deepest
humiliation, all seemed lost; as also how, when old
age was upon him, he labored with the strength
and zeal of youthful manhood "to rebuild the broken
altars of constitutional government and restore to
the people the power to choose and install their own
public servants." 1 Few briefer, well-merited tri-
butes have been paid to deserving men than that
bestowed upon Judge Devine by one of our ablest
jurists: 2 "A statesman who never sought political
preferment, in whose wisdom and counsel, in sun-
shine and in storm, it was safe to trust; a jurist
learned and patient, a lover of justice, absolutely
fearless in the discharge of duty and without re-
proach; a patriot in whose great heart love of

177 Texas, vii.

2Chief Justice John W. Staytom

114 The Supreme Court of Texas

country reigned supreme and counted no sacrifice
too great to make for her welfare."

"William Pitt Ballinger was born in Barboursville,
Kentucky, on the 25th of September, 1825. His
education was acquired in the common schools at
Barboursville and St. Mary's College, Lebanon,
Kentucky. In 1845 he removed to Galveston, Texas,
where he studied law in the office of James Love. He
served in the Mexican War as a private soldier in
General Albert Sydney Johnston's regiment, being
afterwards promoted to the rank of first lieutenant.
Returning to Galveston in 1847, he was admitted to
the bar, and became a member of the law firm of
Jones & Butler, then one of the leading firms of
that city. In 1850 he was appointed United States
District Attorney of the District of Texas. Through
disinclination to be connected with the administra-
tion of Governor E. J. Davis, he refused an appoint-
ment to a position on the Supreme Court tendered
him by that official in 1871. He was a member of
the Constitutional Convention of 1875, and vigor-
ously opposed the provision in the constitution form-
ulated by that convention which provided for the
election of members of the Supreme Court, believing
that it would subject that tribunal to the baneful
influence of politics and corrupt politicians, and
thereafter voted against the adoption of the constitu-
tion for that reason. He was highly recommended to
Rutherford B. Hayes — who purloined the office of
President of the United States from Samuel J.
Tilden in 1875 — for appointment to the vacancy
upon the Supreme Court of the United States,
caused by the resignation of Justice Davis. In 1879

The Supreme Court or Texas 115

he refused an appointment as member of the Com-
mission of Appeals tendered him by Governor
Eoberts. Judge Ballanger was one of the ablest
lawyers the Texas bar has known.

Peter W. Gray was born in Fredericksburg, Vir-
ginia, in 1819. His father removed to Texas in the
early days of its history. In 1837 young Gray per-
formed his first public service as Clerk of the House
of Representatives of the First Congress of the Re-
public. Thereafter, in 1841, he was elected district
attorney. In 1846 he served with distinction as a
member of the First Texas Legislature, his notable
achievement in that body being the formulation of
the Practice Act enacted at that session, of which it
was said: 1 "The profession and people of Texas
are more indebted to Peter W- Gray and R. T.
Wheeler for our present comparatively clear and
intelligible system of pleading and procedure, than,
perhaps, to any other persons. After the passage
of the act in 1840, adopting the common law but
rejecting its system of pleadings, owing to the un-
congenial marriage of two such repugnant systems
as the civil and common law, the profession of Texas
was left to struggle often with more difficulty as to
how to reach the merits of the matters in contro-
versy between the parties than to discuss and bring
them to a fair adjudication when fairly placed
before the court. In this state of outlawry of plead-
ing and procedure, there often occurred the most
annoying and ridiculous struggles .between bur

iT. J. Jennings.

116 The Supreme Court or Texas

ablest lawyers. 1 . . . Our law of pleading re-
mained an this crude, unsettled, and uncertain con-
dition until the meeting of the first Legislature of
the State of Texas in February, 1846, when the dis-
tinguished gentleman (Peter W. Gray) brought
order out of chaos and light out of darkness by
preparing and causing to be passed our well known
Practice Act of 1846, which initiated and led to our
present system of pleading and procedure, which, I
think we may say, without undue partiality for
our own work, for the furtherance of justice (the
object of all law) is the most perfect among the
nations of the earth, old or young. In carrying out
this work which Gray initiated, Judge Wheeler bore
the most conspicious part, as all the earlier de-
cisions of our Supreme Court, on matters of plead-

i"The speaker called attention to several incidents, presenting- in a
striking manner these former combats. A suit was brought in the
district court of San Augustine County in favor of an administrator
de bonis non against his predecessor in office, calling him to account
for alleged misdeeds. Mr. Gould, for the plaintiff, had thrown to-
gether all the common counts of Chitty's Pleadings, and had stated
just facts enough to show what the plaintiff desired. R. T. Wheeler,
for defendant, interposed twenty-seven special exceptions to the peti-
tion, amounting altogether to the assertion that the matters complained
of in plaintiff's petition were not cognizable in a court of law, but in
a court of equity. After Judge Wheeler had made a very elaborate
argument in support of his exceptions, and the plaintiff's counsel had
responded by a solemn and impressive silence, and when the judge
had proceeded far enough in delivering his opinion to indicate that he
was about to sustain the exceptions, some one whispered to Gould,
'Say, why don't you tell him there that this is a court of equity, if
need be.' Mr. Gould arose, begged pardon of the court for the inter-
ruption, and said what had been suggested to him ; to which his honor
replied, 'Well, now, perhaps you are right, I hadn't thought of that;'
and arising to his feet said, 'Gentlemen, I will now take my seat upon
the wool-sack, and as chancellor, I overrule the defendant's excep-
tions.' " — Fortieth Texas, vi.

The Supreme Court of Texas 117

ing and procedure delivered by him, will testify."
As district judge of the Houston district, Judge
Gray established the enviable reputation of being —
as was conceded by the best judge of judicial quali-
fications the State has ever known — "the very best
district judge that ever sat upon the district bench
in Texas." 1 This opinion was shared by many
able contemporaries, as well as those most dis-
tinguished justices of the "old court," Hemphill,
Wheeler and Lipscomb. No other judge connected
with the judiciary of Texas at any period of its his-
tory has received a like unqualified tribute to his
professional learning and acumen from the greatest
members of his enlightened profession. The death
of Judge Gray, which occurred at Houston, Texas,
October 3, 1874, marked the passing of one of the
most distinguished citizens and lawyers whose public
services have contributed to the growth and perfec-
tion of our State judiciary.

Robert Simonton Gould was born in Iredell Coun-
ty, North Carolina, on December 16, 1826. Left
fatherless at the age of seven years, his education
devolved upon his mother, whose self-sacrifices and
untiring labors were rewarded by the accomplish-
ment of that important duty under the most adverse
and trying circumstances incident to poverty. She
removed to Tuscaloosa, Alabama, with the view to
giving her son educational advantages afforded by
the University of Alabama, which he entered in his
fourteenth year, and from which he graduated in
1844. In the following year he studied law, but

iChief Justice Roberts.

118 The Supreme Court or Texas

shortly afterwards became an instructor in mathe-
matics in the university, to the duties of which he
added the additional labors of a continuance of his
professional studies. In 1849 he was admitted to the
bar and engaged the practice of law at Macon,
Mississippi, in copartnership with Ex-Governor J.
L. Martin. In 1850 he settled at Centerville, Leon
County, Texas, where he engaged in the practice.
He was elected District Attorney of the Thirteenth
District in 1853, in which position he served two
terms, and thereafter resumed the practice of law.
He was a member of the Secession Convention in
1861, and was subsequently elected District Judge
of the Thirteenth District He resigned that office
in 1862 to enter the Confederate army as captain of
his company. Thereafter he became mag or of
Gould's Batallion. He participated in the battles
of Mansfield, Pleasant Hill, and Jenkins* Ferry,
and was wounded in the latter engagement. At the
close of the war he resumed the practice of law.
In 1866 he was re-elected Judge of the Thirteenth
District, and, in 1867, was removed from that office
by the military authorities as an "impediment to
reconstruction." He thereafter retired to a farm
where he remained for two years. In 1870 he located
in Galveston, where he resumed the practice. He
was esteemed by those who knew him as an ideal
citizen, a painstaking and fearless officer, a brave
soldier, eminent lawyer, profound judge, learned
teacher of the law, and a Christian gentleman. 1 The
latter days of his life were devoted to duties as

198 Texas, v, ri.

The Supreme Court of Texas 119

law professor of the University of Texas, in con-
junction with Oran M. Roberts, senior professor in
that department. As an instructor he was most
painstaking and patient, but firm in exacting of
students a thorough study and understanding of the
principles of the law. Hundreds of students who
were so fortunate as to profit by his instruction
during the fifteen years of his service in the Uni-
versity, gratefully acknowledge his superior abil-
ities, and revere the memory of a most kindly
instructor whose interested labors contributed so
abundantly to their professional learning.

Two cases decided by this court are the ablest
expositions of the law Of mcmda/mus in its ap-
plication to the executive heads of State government
which have been formulated in the Supreme Court of
Texas. Containing a review and careful analysis
of leading authorities and precedents on the sub-
ject, they are interesting in the disclosure of the
strongest members of the court differing in their
views upon important questions involved in the
cases, and supporting their respective contentions by
able arguments and exhaustive reviews of numerous
authorities.

In Bledsoe vs. International & Great Northern
Railroad Company? Special Justice Ferris, follow-
ing the rule announced by Justice Roberts in Hous-
ton Tap & Brazoria Railroad Company vs. Ran-
dolph, 2 held that the countersigning of certain rail-
road bonds by the State Comptroller was not a

140 Texas, 537.
234 Texas, 317.

120 The Supreme Court of Texas

clerical or ministerial duty, the performance of
which could be compelled by mandamus. Justices
Eeeves and Devine dissented from the majority
opinion, the former, among other grounds, because
the duty of the Comptroller in the instance case was
ministerial, involving the exercise of discretion
which could be compelled by mandamus; while the
latter based his dissent upon his conviction that no
power was vested in any branch of the executive
departments of State government to refuse or fail
to act in any case where the duty to be performed
was required by a plain, positive, peremptory con-
stitutional enactment. He asserted that the power
of the court to grant the writ of mandamus had
never been denied by the Supreme Court of Texas,
whenever the facts brought the particular case
within the letter and reason of the law, saving in
the one solitary case of Houston Tap Brazoria Bail-
road Company vs. Bcmdolph, which, in so far
as it declared the inability of the court to issue
the writ of mandamus to the heads of departments
or bureaus, he conceived to have been overruled by
the subsequent case of Houston & Great Northern
Bailroad Company vs. Commissioner of the General
Land Office. 1

In Kuechler vs. Wright, 2 the question in the pre-
ceding case was again involved. The majority opin-
ion rendered by Associate Justice Moore, holding
that mandamus would lie to compel the Commis-
sioner of the General Land Office to perform a

136 Texas, 399.
240 Texas, 610.

The Supreme Court of Texas 121

mere ministerial duty and that so much of the
opinion of Justice Roberts in Houston Tap & Bra-
zoria Railroad Company vs. Randolph, as denied
the right of the court to issue writs of mandamus
to the heads of the executive departments of the
State government, was a decision of a point not
necessary to the disposal of the case, hut the sug-
gestion by the court in, the opinion of a matter which
had not been discussed by counsel; that if it could
be considered an authoritative decision upon that
point, it had been repudiated in several subse-
quent cases, including Houston & Great Northern
Railroad Company vs. Commissioner of the General
Land Office.

Those who may be interested in one of the ablest
opinions rendered by one of the greatest judges
of the Supreme Court of Texas, in combatting the
able opinions of his distinguished brother Justices,
will find it in the dissenting opinion of Chief Jus-
tice Roberts in the Keuchler case. For vigor,
clearness, strength, and masterly treatment of the
points involved, it is probably unequalled in the
history of our judiciary.

In this opinion Chief Justice Roberts announced
his inability to concur in the majority opinion,
for the following reasons :

"1. A mandamus cannot be legally issued to any
one of the heads of the executive department of the
State of Texas to compel him to exercise any power
in the performance of any official function confided
to him as such executive officer by the constitution
and laws of this State.

'2. That the issuing of the patent under the law

nt

122 The Supreme Court of Texas

and facts as presented in this case is the exercise
of a power in the performance of such an official
function so confided to him.

"3. That the Commissioner of the General Land
Office, under and by virtue of the constitution of the
State of Texas adopted in 1869, and the laws of
the State consistent therewith, is one of the heads
of the executive department in the government of
the State of Texas."

Following a masterly review and convincing dis-
cussion of the authorities bearing upon the points at
issue, Justice Roberts concludes his opinion as
follows :

"The authority for the exercise of this power,
assumed by courts to control the conduct of the
heads of the executive department, in the isolated
and exceptional instance of what is called a minis-
terial act, however it may have since been extended
in many of the states, from a difference of opinion
as to what constitutes such an act, is founded on
and traceable to the dictum contained in the opinion
of the Supreme Court of limited States in 1803, in
the case of Marbury vs. Madison. It was delivered
by Chief Justice Marshall, who is universally re-
garded, it is so believed, as the greatest lawyer
America has produced. And that was emphatically
a lawyer's opinion.

"Why, it may be asked, should the courts con-
tinue to follow in the train of a line of decisions that
originated in a useless dictum that seeks to make
such an infinitesimal exception to a broad and gen-
eral rule, and thereby break down a general princi-
ple by a breach that opens the door of intrusion and

The Supreme Court of Texas 123

gives the intruder the right to determine the extent
of his power to intrude through the breach he has
assumed himself to make; making an exception of
the exact limits and boundaries of which the ablest
jurists have never been able to convey a definite
idea with anything like consistency and uniformity,
which is liable at any time to produce internal con-
flict and confusion, and which has almost continually
been adopted with dissent and dissatisfaction?

"The circumstances and remarkable juncture of
public affairs under which that dictum appeared in
the opinion thrust themselves into the estimate of
its weight and authority, as no practical purpose
can be found in the opinion itself for so labored an
argument to prove what was not necessary to decide
the case. As to all that part of the opinion not re-
lating to the appellate jurisdiction of the court
(which was the real matter in issue), it is a most
ingenious argument, made gratutiously in a judicial
decision under the sanction of the highest judicial
tribunal of the country, thereby attempting to give
to it the sanctity of the judicial ermine — unassail-
able from habitual and traditional respect — to stand
in a high place as a' perpetual memorial of the as-
sumed outrageous abuse of official authority in the
alleged deprivation of a private right of a citizen
by the executive department of the government of
the United States, then in power.

"Mr. Madison, then secretary of state under Pres-
ident Jefferson, who stood pre-eminent among the
great men who framed the constitution, and who
may be supposed to have understood its meaning,
and to have designed its preservation equally with

124 The Stjpbeme Couet op Texas

any one else, treated this effort on the part of the
court to interfere with his official conduct with —
silence (not to use a stronger term), in not answering
it. Still he was not attached for contempt for not
making a return to the writ or otherwise making an
answer in court; but instead of that, as appears
from the report of the case, some of the clerks of
the secretary's office were picked up and brought
into court, from whom, it may be presumed, the
facts were established upon which the argument in
that part of the opinion was founded. It was surely
not necessary to ascertain any fact whatever except
the application itself of the relator, Marbury, to
ascertain that it was an original suit and not an
appeal, upon which fact alone the case was based
and the judgment rendered. And I borrow from
him the reason why such an opinion so delivered
should not be followed as a precedent, which is con-
tained in the same opinion; that this is, or at least
should be made to be, what he says it has been
termed, 'a government of laws and not of men' ; and
I will presume to add that it is high time that the
judicial idolatry for a name, however great and
deserving, by which a dictum of any court has been
made the law of the land should begin to cease in
this country.

"I will close this opinion in the words of Sir
William Blackstone, equally eminent for his great
learning and for his profound knowledge of the sci-
ence of law and of government, as fully expressing
my own mature convictions as applicable to this and
to all such cases, which is that 'nothing is more to
be avoided in a free Constitution than uniting the
provinces of a judge and a minister of State.' "

The Supeeme Court of Texas 125

The ease of Horbach vs. State, 1 decided by this
court, has been subjected to the unjust criticism of
being the cause of the acquittal of more murderers
in Texas than any decision rendered by its courts, in
its supposed approval of the "hip-pocket-movement"
type of self-defense, the popularity, growth and
perfection of which has been a reproach to a certain
class of lawyers, rather than to the courts of the
country. Whatever of lamentable consequences have
followed this decision are believed to have been due to
the improper application of the facts of that case to
others to which they were never intended to apply,
and to the erroneous conception or deliberate mis-
construction of the law as therein announced by the
learned Chief Justice who rendered the opinion in
the Horbach case. Briefly stated, the facts dis-
closed in the case were that one Thomas, who was
intoxicated, engaged in a controversy with persons
with whom he was drinking in a saloon as to whether
he owed for certain drinks which had been served to
the party, in the course of which the defendant,
Horbach, entered the saloon. Thereupon Thomas
asked Horbach if he (Thomas) owed for the drinks,
and upon being answered in the affirmative, began to
abuse Horbach by heaping upon h i m curses and
epithets of a grossly insulting, outrageous nature.
Horbach sought to pacify Thomas by agreeing with
him touching the matter of who owed for the drinks,
which but increased the anger of Thomas, who there-
upon called Horbach "a damned lying son of a ,"

143 Texas, 346-247.

126 The Supreme Court of Texas

at the same time gesticulating in a violent, angry-
manner. Horbach, after twice demanding of
Thomas what he meant, to which Thomas responded
by repeating the epithets and gesticulations, and,
finally, stepping back with his right foot, threw
his right hand behind him, pushing back the skirt
of his coat, when instantly Horbach presented his
pistol with both hands and, firing, shot Thomas
in the head, killing him. Upon examination of
Thomas' body no weapons were found upon it.

At the trial in the court below, Horbach 's counsel
sought to prove by questions to witnesses that
Thomas was in the habit of carrying deadly weap-
ons, and that Thomas, when intoxicated, was a
quarrelsome and dangerous man. Objections inter-
posed by the State to these questions were sustained
by the court. "With the exception of a ruling of the
trial court on a question of procedure in selecting
jurors, the only point involved on appeal and decided
by the Supreme Court in the case was, that under
the facts disclosed in the record, the trial court erred
in refusing to admit the evidence of Thomas' habit
of carrying arms and his dangerous disposition when
intoxicated — a ruling based upon an elementary
principle of criminal law, supported by an unbroken
line of decisions. The court, of course, did not in-
timate its opinion of the weight or sufficiency of
the proffered evidence as excusing or justifying the
defendant, Horbach, in taking the life of Thomas.
Upon the contrary, it expressly declared, "There is
no occasion here to give the least intimation of opin-
ion as to the weight of this evidence, as establishing
one conclusion or another in reference to the guilt or

The Supreme Court of Texas 127

innocence of the defendant." It conclusively ap u
pears from the record of the case that it is in no
respect an authority indorsing or approving the
"hip-pocket-movement" theory of self-defense, the
modern refinement and popularity of which are due
to the methods of certain practitioners of the crim-
inal branch of the law, and not to the decisions of the
superior courts of the country. The facts in the
Horbach case are sufficiently harrowing to the aver-
age juror's sense of fairness and justice to place his
mind in a receptive attitude to the justice and po-
tency of the "hip-pocket-movement" self-defense
plea, a fact which has not escaped a class of prac-
titioners which has profited by it from time to time. 1
It is, perhaps, necessary to state in this connection
that the foregoing is not intended as a denial of the
soundness or a criticism of the well-known rule of
criminal law, that one who actually believes his life
to be endangered by the action of his adversary is
justified in acting upon a state of facts reasonably
indicating the present purpose of such adversary
to take his life, regardless of whether such was the
real intention of his assailant.

On September 2, 1875, Associate Justice Devine
resigned, and on September 6th, 1875, the vacancy
was filled by the appointment of John Ireland.

John Ireland was born in Hart County, Kentucky,
January 21, 1827. He was educated in the common
schools of his native State. In 1847 he served as

illlustrative of this was the attempt of counsel, in a ease tried in
Western Texas, to read the Horbach case to the jury, and, upon being
stopped by the court, naively observed, "Then, your honor, I will read
it to the court in the hearing' of the jury !"

128 The Supreme Court of Texas

deputy sheriff and constable, respectively, in Hart
County. He studied law in the office of Robert D.
Murray and Henry D. Wood, at Mumford, Ken-
tucky, and was admitted to the bar the year follow-
ing. In 1853 he removed to Texas, locating at San
Antonio, where he formed a partnership with N. O.
Green, and engaged in the practice of law for a
short time, when he removed to Seguin, Guadalupe
County, which became his permanent home. At the
outbreak of the Civil "War he volunteered as a pri-
vate soldier in the army of the Confederacy, being -
promoted successively to the ranks of lieutenant,
captain, major, and lieutenant-colonel. He was a
member of the Constitutional Convention of 1861,
as also a member of the Constitutional Convention
of 1866. He was thereafter elected to the office
of District Judge, but, in 1867, was removed from
office by the military authorities as an "impediment
to reconstruction." In 1873 he was elected Repre-
sentative in the Thirteenth Legislature, and was
thereafter elected State Senator, and served in the
Fourteenth Legislature. In 1882 he was elected
Governor of Texas, his administration of the du-
ties of that office being characterized by firmness
and efficiency unexcelled by any chief executive who
has held that position. During his administration
serious disorders and violent conflicts arose over the
"free grass" issue, through the insistence of many
misguided citizens that it was their lawful right to
pasture their stock upon lands of the State and priv-
ate owners without making compensation for the use
of them; while numerous bands of fence-cutters
openly defied the right of such owners to fence their

The Supreme Court or Texas 129

property, and the power of constituted authorities to
prevent the lawless destruction of such fences. Gov-
ernor Ireland's fearless enforcement of the laws for
the protection of property rights effectually sup-
pressed the activities of those politically powerful
offenders. When, during his term of office, the
United States government proved remiss in properly
protecting the frontiers of Texas from lawless forays
of Mexican thieves and bandits, he declared his
intention of suppressing them by the employment
of Texas troops, which he would have accomplished
but for a change in the Federal administration which
made that course unnecessary. It is creditable to the
people of Texas that Governor Ireland, although
opposed by powerful factions, whose lawlessness he
had so vigorously and successfully opposed in the
enforcement of law and order, was re-elected to
the office of Governor by a majority of over 100,000
votes. He was a man of unimpeachable honor and
integrity of character, unequalled courage, firm in
his convictions, austere and dignified in bearing,
and unswerving in his devotion to law and justice,
regardless of consequences. "As a friend he was
as true as steel and as gentle as a woman." 1

The Constitution of 1876 reduced the number of
justices of the Supreme Court to three, and, at the
ensuing election held thereunder, Oran M. Roberts
was elected Chief Justice, and George F. Moore
and Robert S. Gould, Associate Justices.

In Yancy vs. Batte, 2 in an opinion rendered by

iJustiee Denman,
248 Texas, 46.

130 The Supreme Court of Texas

Associate Justice Gould, it was held that where a
husband and wife acquired certain lands which were
community property, and which were conveyed by
the husband to a purchaser after the death of the
wife, that the heirs of the wife, after the death of
the husband, could recover one-half of such lands
from the vendee of the husband, who was inno-
cent purchaser for value without notice of the claim
of heirs. Associate Justice Mbore rendered a strong
dissenting opinion in the case in which he ably
presented the contrary view to that expressed in
the majority opinion.

"When the opinion of the court affirming the
judgment of the District Court in this case was
read," says Justice Moore, "I made an oral state-
ment of some of the grounds of my dissent from
this judgment. In doing so, I had occasion to say
that, in my opinion, there probably existed in the
minds of my brethren, as well as that of many mem-
bers of the bar, a misconception of the points hereto-
fore decided by this court in this class of cases. That
it could not, as I thought, be justly said the court
had, or in fact had ever, attempted to settle the
general and fundamental principles by which con-
troversies between heirs of the deceased wife and
purchasers from the surviving husband, of commu-
nity property, were to be determined. That the
cases which were supposed to have done so, were
decisions of the particular phase of the question
suggested by the record, or most prominently pre-
sented by the counsel for both parties. That while
in several of the cases the power of the surviving
husband to sell community property for the pay-

The Supreme Court of Texas 131

ment of debts with which it was properly charge-
able was fully recognized, — which principle, if prop-
erly applicable to the facts shown in this case, should
lead to its reversal, — still there were other questions
of equal or greater importance for the determina-
tion of the court in such controversies, which, as I
thought, were still undetermined; or, if determined,
this had certainly not been done 'on solemn argu-
ment and mature deliberation.' 1 And therefore, we
were not bound to adhere to and follow such de-
cisions, if, on examination, they proved to be un-
sound, as well as contrary to public policy, and ab-
solutely ruinous to the best interests of society in
general."

He insisted that the character of the wife's inter-
est in the community property was an equitable in-
terest ; that this right was subordinate to that of the
executor or administrator, and that so must be that
of the heirs of the wife to the proper and necessary
appropriation of it by the surviving husband to
the payment of debts with which it was chargeable;
the heirs being only entitled to an interest in the re-
mainder of the community property after the pay-
ment of all liabilities against it. As heirs could not
demand any part of community property from the
surviving husband until the debts with which it was
chargeable were paid, that in a suit by the heirs of
the wife against the purchaser of such property from
the surviving husband, the burden should devolve
on them to prove their right to the property claimed
by them. He further contended that if the pur-

iKent's Camm, 476.

132 The Supreme Court op Texas

chaser from the husband did not get the legal title,
if he could establish that he was a purchaser for
value from a person having or apparently holding
the legal title, and having authority to sell without
notice of the rights of the heirs of the wife, his
equity would be superior to that of the heirs, and
they could not recover. After reviewing the au-
thorities supporting the majority opinion, Justice
Moore continues :

"Having gone through the cases cited and relied
by the court, I ask, with all due respect, in which
of them have the points upon which we differ been
decided? In what case, by any just rule of con-
struction, can it be said that the question, whether
the wife acquires by reason of the law of community,
the legal title by a deed to the husband, has been
presented in the record, argued by counsel, or con-
sidered and decided by the court? It has, unques-
tionably, been repeatedly held that the surviving
husband has power to settle up the community, ad-
just and discharge its liabilities. His power to sell
property to pay valid claims against it is fully recog-
nized in this case, and in Johnson vs. Harrison. 1 But
when and where has it been said that the purchaser
must be prepared to sustain his title by proofs that
there were such debts ? Which of these cases deter-
mines that a purchaser in good faith, for a valuable
consideration, from one holding the legal title, or
the apparent legal title, with no knowledge or op-
portunity of learning that any other persons claim
an interest in the land, is not entitled to protection

148 Texas, 257.

The Supreme Court or Texas 133

against the heirs of the wife, whether they are adults
or minors? ... I certainly would not lightly
disturb a line of decisions, or even a single well-
considered case which has become a rule of property.
But if it is the duty of this court to follow precedents
and respect decisions, it is frequently equally neces-
sary to examine them without fear, and revise them
without reluctance. If the cases referred to have
gone to the extent thought by the court, they have
not, and from their very nature can not, become a
rule of property, but must continue, so long as the
court is controlled by them, to unsettle it. They will
be a source of continued disturbance to society, and
lead to the stirring up of strife and litigation, over
stale and long-forgotten transactions, after the
parties by whom they should have been settled have
passed away, and after the property involved has
passed through many different hands, who know
nothing of the facts and circumstances connected
with them, and who have no opportunity of learning
the truth in relation to them. They can but be foun-
tains of fraud and perjury, poisoning the minds of
children, inculcating lessons of selfish distrust and
disrespect, in place of reverence, filial affection, and
domestic harmony. Such a train of decisions, when
fully approved by this court, must cast a cloud upon
almost every title to land in the State, and when gen-
erally known reduce the value of real estate, em-
barrass its transfer, obstruct settlement, retard im-
provement, drive away emigration, alarm capital,
and produce general uneasiness and disquiet, with
all the attendant evils and consequences resulting
where men are made to feel insecure in their prop-

134 The Supreme Cotibt or Texas

erty and homes. That such must be the general
effect cannot be controverted. With the most dil-
igent inquiry and examination that is practically
possible, the most patient attorney, when called upon
to examine a title, will be unable to say, in one in-
stance out of ten, that it is unquestionably perfect,
or advise a client that he may purchase without dan-
ger that he may not at any moment find himself
involved in a suit for one-half the land with people
of whom he has never heard, though he has the very
title in his hand which, the court hold, gives the
parties suing him the legal title to half the land. It
is practically impossible, by any reasonable inquiry,
for the most prudent purchaser to learn the domes-
tic relations of every party through whom land has
passed. If possible, it would be quite difficult to
do this if all such parties resided in the immediate
vicinity of the land. But when it is remembered
that many of them may have lived in widely differ-
ent localities, it evidently would be a vain under-
taking. And what prudent man would buy land
if he knew that he could be called upon at any time
during the next twenty or thirty years if any one of
the parties through whom his title comes was mar-
ried when he purchased, but a widower when he sold
it, to show that there were debts against the com-
munity estate of such vendor and his former wife
when he sold the land ; that such sale was made with
the honest purpose of paying these debts, and that
the vendor had justly accounted to his wife's chil-
dren for all their interest in the community estate?
Such suits as these have certainly never been re-
garded with any peculiar favor by the courts, and

The Supreme Court or Texas 135

are not to be encouraged. They have, indeed, been
reprobated in the strongest terms in this and other
courts, and are not to be encouraged. Much too of-
ten there is found in the record strong ground for
suspecting that the heirs of the wife are used by
others as instrumentalities in branding their father
with fraud, to enable such parties to make an in-
iquitous and unconscionable speculation out of a
party who has been entrapped into the purchase of
a defective title. The record in this case exhibits
strong suspicion that such is the character and ob-
ject of this suit. I have not time to comment upon
the facts; but the statement by the reporter will no
doubt set them out sufficiently full for this phase
of the case to be properly understood and appreci-
ated. ... As there was nothing in the record
or elsewhere to put the purchaser on notice of the
title of the heirs, the case is not similar to that of
the heirs of party holding by deed. True, the title
of the heir in such case may not be registered, yet
the party in whom the record shows title being dead,
a subsequent purchaser cannot be deceived. Here
the party to whom the conveyance was made still
holds the deed, and sells the land. Should not equity,
under such circumstances, aid a bona fide purchaser
against the heir, not of the party to whom the land
was conveyed, but the heir of another party whose
interest is not shown by the record or suggested by
the chain of title exhibited to the purchaser?"

In Texas Land Company vs. Williams, 1 Chief Jus-
tice Roberts gives a working model for the guidance

148 Texas, 602.

136 The Supreme Court of Texas

of the legal profession in the preparation of briefs,
under then existing rules of the Supreme Court,
which from its publication to the present time has
been a valuable aid to lawyers in the important work
of briefing causes in the superior courts.

Chief Justice Roberts resigned in 1878, and Asso-
ciate Justice Moore, who had resigned August 27,
1878, to take effect October 1, 1878, was elected Chief
Justice November 5, 1878; and at the same election
Micajah H. Bonner was elected Associate Justice.
Chief Justice Roberts having resigned prior to the
Tyler term, 1878, George F. Moore and Micajah H.
Bonner acted as Chief Justice and Associate Justice,
respectively, under appointment of the Governor
during the Tyler term, 1878, and a portion of the
Galveston term, 1879.

Micajah H. Bonner was born in Greenville, But-
ler County, Alabama, on the 25th of January, 1828.
In 1836 his family removed to Holmes County, Mis-
sissippi, where he was educated in the common
schools of that State, finishing with an irregular
course in La Grange College, Kentucky. He was
admitted to the bar on the 5th of December, 1848,
and removed to Texas in 1849, settling at Marshall,
where he engaged in practising law in an office "built
by his own hands." Thereafter he removed to
Rusk, where he formed a law partnership with J.
Pinckney Henderson, then a leading member of the
Texas bar, a business relation which continued until
the election of Mr. Henderson to Congress, when
Mr. Bonner associated himself dn the practice with
his brother, F. W. Bonner. In 1873 he was appointed
District Judge of the Seventeenth District, and re-

The Supreme Court of Texas 137

moved to Tyler. At the expiration of his term he
was reappointed by Governor Coke, and continued
to preside over that court until the adoption of the
Constitution of 1876. As District Judge he was able,
effiicent and noted for the rapid and accurate dis-
charge of the business of his court. His popularity
with members of the bar with whom he was associ-
ated in the practice is shown in the circumstance that
he was unanimously recommended by them to the
Governor for appointment as judge of a district in
which he did not reside. He is described as a judge
who brought to the Supreme Bench a well trained
mind and great experience as judge of another
tribunal ; a diligent worker in his profession, as well
as in the judicial positions which he filled; and a
close investigator of the true doctrines of law and
equity, whose opinions exhibited careful examina-
tion of record. 1

In Ex-Parte Towles 2 there is an interesting dis-
cussion in the majority opinion, and the dissenting
opinion by Justice Gould, of the constitutionality
of an act conferring jurisdiction upon Distract
Courts of appeals from County Courts in con-
tested county seat election cases. 3 In the majority
opinion it was held that the Constitution of 1876
did not confer upon District Courts the power to
entertain appeals prescribed by the act ; that the pro-
ceedings were wanting in all the attributes of a case
or suit cognizable in the District Court, having
neither the parties nor subject matter necessary to

iChief Justice H. H. Willie.

248 Texas, 413.

a Acts 2nd session 14th Leg., p. 89.

138 The Supreme Court op Texas

its jurisdiction as prescribed by the Constitution;
and that so much of the act as gave the right of ap-
peal to the District Court in such cases was incap-
able of being executed in accordance with the appar-
ent legislative intention. Justice Gould dissented
from so much of the opinion of the majority as held
that the statute, which gave to any legal voter of
the county the right to contest the result of the elec-
tion in the District Court, was unconstitutional, for
the reason that he regarded such decision as sub-
stantially overruling former decisions of the court
on the subject of contested elections, and because the
constitutional questions involved were of such im-
portance as to justify the fullest examination.

In Peck vs. San Antonio 1 the court in an opinion
rendered by Justice Bonner, overruled the case of
San Antonio vs. Lane, 2 which held that the twelfth
section of an act incorporating the San Antonio &
Mexican Gulf Railroad Company, constitutional, be-
cause the court as then organized was not author-
ized by the Constitution and laws of the State.
"With all due respect to the members who com-
posed the same as individuals," says the court,
"their decisions have not received the same author-
itative sanction given those of the court as regularly
constituted." This expression of a lack of confi-
dence in the soundness of decisions of the "military"
Supreme Court is one of several similar criticisms
of it indulged by the court as subsequently organ-
ized, in its work of annulling partisan, erroneous de-
cisions of the "semicolon court."

151 Texas, 493.
232 Texas, 405.

The Supreme Court of Texas 139

The Act of July 9, 1879, 1 creating a commission
of arbitration and award was the beginning of sev-
eral ill-starred attempts to relieve the Supreme
Court of Texas of the great and increasing burden
of business, which is today as great a problem as it
was in the beginning, and which is now claiming
the attention of judicial reformers in and out of the
legal profession. The act provided for a commission
of arbitration and award to consist of three persons
learned in the law, to be appointed by the Governor,
who should hold their offices for two years and re-
ceive the same salary as Judges of the Supreme
Court, the name of which should be the "Commis-
sioners of Appeals of the State of Texas." It was
given power to hear and pronounce awards in civil
cases then or thereafter pending in the Supreme
Court or the Court of Appeals, in which the parties
or their attorneys might file consent in writing to
the reference thereof to the commission. The com-
mission was required to hold its sessions at the same
times and places as the Supreme Court, and to re-
port its conclusions or award to the Supreme Court
or Court of Appeals in cases referred to it, with a
brief synopsis of the case and its opinion thereon. It
was provided that its conclusion or award should be-
come the judgment of the Supreme Court or the
Court of Appeals, respectively, and that such courts
should make and render such further order, judg-
ment or decree there as should be necessary to make
the award effective. It was further provided that the
opinions of the commission should not be published

lActs of 16th Leg., p. 30.

140 The Supreme Court of Texas

in the reports of the decisions of the Supreme Court
nor of the Court of Appeals, nor should have any
further effect than to determine the particular cause
when rendered, and should have no force or effect as
authority or precedents in other cases.

It is noted that the foregoing act was amended
four times in apparently vain efforts to make it ef-
ficient in the accomplishment of the purpose of its
creation — the relief of the overworked Judges of the
Supreme Court in disposing of the vast amount of
business encumbering the docket of that tribunal. 1

In Henderson vs. Beaton 2 the court passed upon
the constitutionality of the act creating the com-
mission above mentioned and, in an opinion ren-
dered by Justice Gould, held that the commission was
not a court, had no jurisdiction, was merely a board
of arbitration, and deprived no citizen against his
will, of the right to his appeal to courts of last re-
sort created by the Constitution, and as such was not
created in violation of its judiciary clause providing
that "the judicial power of the State shall be vested
in one Supreme Court and in a Court of Appeals"
and subordinate courts therein provided for. No
more significance was attached by the opinion to the
provision of the law making the award of the com-
mission the judgment of the court in which the cause
was pending, than to the similar provision in the
general statute authorizing the entry of the award
of arbitrators therein provided for as the judgment
of courts.

lActs of 17th Leg., p. 4; 20th Leg., p. 74; 31st Leg., p. 49; 22Dd
Leg., p. 78.
252 Texas, 29.

The Stjpreme Court of Texas 141

Chief Justice Moore, in the course of an able dis-
senting opinion in the case, says:

"Although the majority of the court deny that
such is its proper construction, still, since, as I in-
sist, the legal effect of this act, if a valid and con-
stitutional law, is to create a court, and some of its
advocates maintain its validity upon this ground,
it is proper that I should consider it in this light.
The length to which this opinion has been already
protracted will forbid any attempt to elaborate my
views regarding it from this standpoint. I conceive
that the Legislature may create other courts than
those named in the Constitution, and they need not
necessarily be inferior courts, as under the Con-
stitution of 1845. . . . But, in my view, the
jurisdiction of such courts as may be created by the
Legislature must not touch upon or interfere with
that conferred by the Constitution on the courts
established by that instrument. I have heard it in-
sisted upon by some, that the entire judicial power
is apportioned by the Constitution among the dif-
ferent courts named in it, and therefore to say that
none of this jurisdiction can be conferred on courts
established by the Legislature, is in effect to deny
the Legislature the power to create other courts.
But unfortunately such is not the case. If it was,
the judicial organization of the State would be far
more complete, if not more satisfactory, than it is
. . . But if I concede that the Legislature may
confer upon courts created by it concurrent juris-
diction with the constitutional courts, this can only
be when exclusive jurisdiction has not been, ex-
pressly or by clear implication, conferred on the

142 The Sttpkeme Cottkt or Texas

constitutional court. That the jurisdiction vested
by the Constitution in the Supreme Court is ex-
clusive, and cannot be conferred upon or exercised
by any other constitutional or legislative tribunal,
without a violation of the organic law, seems to me
to be plain beyond all doubt or question. True, the
Constitution does not in direct words say that there
shall be but one, or only one Supreme Court, or that
the jurisdiction conferred upon it shall be exer-
cised by no other court; but this is certainly its
meaning. To more certainly attain the ends of
justice, the exercise of judicial power by our Con-
stitution, as is perhaps now universally the case
in the American system of government, is committed
to courts of original and courts of appellate juris-
diction. Certainly one of the great and essential
objects and ends of appellate jurisdiction is to se-
cure harmony and uniformity in decision through-
out the State, and that the law shall be interpreted
and construed alike in every part of it, and between
all parties who invoke its aid and protection. This
could not be if there were more than one appellate
court of last resort for the decision of the same
class of cases. . . . But if I am not correct in
this conclusion, still there are other ^insurmountable
objections to the constitutionality of this act. It
not only, as I think, interferes with the exclusive
constitutional jurisdiction of the Supreme Court,
but it also requires of it the exercise of functions
not conferred upon it, but, indeed, expressly with-
held from it, by the Constitution, and inconsistent
with its duty and dignity as the court of last resort
in the State in civil cases. The first sentence of

The Supreme Court of Texas 143

Section 3, Article 5, of the Constitution reads as
follows: 'The Supreme Court shall have appellate
jurisdiction only, which shall be coextensive with the
limits of the State, but shall only extend to civil
cases, of which the district courts have original or
appellate jurisdiction.' Jurisdiction is said to be
the power to hear and determine a cause; an ap-
pellate jurisdiction, with us, is to hear and deter-
mine whether there is error in the judgment, and
if so, to give judgment as the law and facts warrant
and demand. It certainly follows that the mere
entry of a judgment of some other tribunal, without
hearing or determining the cause or question to be
decided, or having authority or discretion in entering
such judgment, is not the exercise of jurisdiction,
but the mere discharge of a ministerial duty. It
matters not whether the commission of appeals is a
court or a board of arbitrators. Whether their re-
port is regarded as a judgment of a court or an
award arbitration, the entry of its judgment or
award cannot be regarded as the exercise of ap-
pellate jurisdiction by the Supreme Court, but the
performance of a simple ministerial duty imposed
by the statute without authority and in violation of
the Constitution."

By an act approved February 9, 1881, 1 the law
creating the commission of arbitration was amended,
providing that the commission should be styled,
"The Commission of Appeals of the State of Texas,"
and authorizing and empowering the Supreme
Court, and the Court of Appeals to refer civil cases

iGeneral Laws 17th Leg-., p. 4.

144 The Supreme Cotjbt of Texas

to the commission for its decision; and providing
that its opinions in cases so referred, when adopted
by those courts, should be published "as the opin-
ions thereof as in other cases."

The case of Stone vs. Brown 1 was the first re-
turned to the Supreme Court by the commission
after the amendment became effective, and the con-
stitutionality of the act, as amended, was again con-
sidered by the court and upheld.

Chief Justice Moore again dissented, and, in his
opinion, says:

"I have no doubt that the Legislature, if it deems
it wise and proper to do so, has the constitutional
authority to enact a law authorizing the Supreme
Court to refer cases pending before it to a commis-
sion, to examine and report to it the matters of
fact and law which they involve, where the court
is in no way hampered or attempted to be em-
barrassed or controlled in the full and free exer-
cise of its judgement in their determination; but
at the same time must say, that in my opinion the
provisions of the act of February 9, 1881, prev-
iously mentioned, under which this case was re-
ferred to the commissioners of appeals, were un-
constitutionally enacted."

In Milliken vs. City Council of Weatherford*
there is a commendable, humane recognition of
rights of scarlet women, in which Pharisees who ha-
bitually disregard the divine precedent announced
by Jesus of Nazareth, may learn that degraded and

154 Texas, 330.
254 Texas, 3S8.

The Supreme Court of Texas 145

defenseless victims of their inhuman, fanatical per-
secutions sometimes enjoy the protection of the
laws of man as well as those of a just and merciful
God.

"The appellant was charged with a violation of
Section 2 (ordinance of the city of Weatherford),"
says the court, "by renting certain premises to
prostitutes and lewd women. It will be observed
that this section prohibits merely the renting, etc.,
of any place or premises within the city limits,
without reference to the purposes for which the
property may be used. Although we most heartily
approve the desire of the city council that dens and
haunts of prostitution, 'going down to the cham-
bers of death,' shall be prohibited and suppressed;
and that their inmates shall not be permitted to
ply their nefarious traffic in the property, reputa-
tion and souls of fellow beings, within the limits of
the city, yet we are of opinion that the alleged
offense did not embrace such act which the coun-
cil, under our Constitution and laws, had the power
to make penal. The unfortunate and degraded class
against whom the ordinance was mainly intended,
however far they may have fallen beneath the true
mission of women, which it is one of our highest
duties to foster and protect in social and domestic
life, are still human beings, entitled to shelter and
the protection of the law; and the council did not
have the power to so far proscribe them as a class,
as to make it a penal offense in any one to rent
them a habitation without regard to its use. Such
ordinance is null and void, because unreasonable
and in controvention of common right."

146 The Supreme Court of Texas

The case of So Belle vs. Western Union Telegraph
Company, 1 was the first to announce the rule that
mental anguish is actual damage, recoverable for
negligent failure of a telegraph company to deliver
messages announcing the death of relatives of the
addressee, where no other actual damage resulted
from such negligence.

On November 1, 1881, Chief Justice Moore re-
signed, failing eyesight rendering it impossible for
him to further discharge the duties of his office.
As noted by the reporter in two volumes of reports 2
preceding the resignation, Justice Moore was ser-
iously afflicted during the latter part of the Gal-
veston, Austin, and Tyler terms, in 1879, and Gal-
veston Term, 1880; the condition of his eyes pre-
venting him from writing opinions, but he rendered
many oral opinions in cases not required by the
statute to be in writing. His poignant grief at
being compelled to sever his connection with the
august tribunal which had so long been the scene
of his efficient judicial labors, and which he loved
so well, was scarcely less distressing than the sad
affliction presaging permanent blindness.

On November 1, 1881, Associate Justice Gould
was appointed Chief Justice, and, on November 2,
1881, John W. Stayton was appointed Associate
Justice to supply the vacancy caused by the pro-
motion of Justice Gould.

John William Stayton was born in Washington
County, Kentucky, December 24, 1831. Left father-

155 Texas, 308.

251 and 53 Texas Keports.

The Supreme Court of Texas 147

less at the age of four years, his family removed to
Paducah, where his mother hoped to give him the
best education afforded by the common schools of
that prosperous community, but her death, in 1834,
prevented the fulfillment of that cherished desire.
After the death of his mother, young Stayton was
employed for four years as a laborer on his grand-
father's farm. His ambition to secure a college
education was opposed and discouraged by his
guardian, to whose wishes he dutifully conformed,
but left the farm to engage in the blacksmith trade.
His earnings in that employment enabled him to
pursue a private course of study; and thereafter
he secured employment as teacher of a country
school. At this period he began the study of law,
under written instructions supplied him by his
uncle, Judge Henry Pirtle, of Louisville, Kentucky.
In 1855 Mr. Stayton entered the law department
of Louisville University, thereafter graduating with
honors from that institution. In November, 1856,
he removed to Texas, locating at La Grange, Fay-
ette County. Pecuniary losses and ill health neces-
sitated his removal to Atascosa County, then prac-
tically an unsettled wilderness. In 1856 he settled at
Pleasanton, county seat of that county, where he
engaged in blacksmithing and practising law, and
was successful in both. In the autumn of 1858 he
was elected district attorney, and in 1860 was re-
elected to that office, in which he served with dis-
tinction. At the expiration of his term of office
he removed to Sutherland Springs, Wilson County.
In 1862 he enlisted in the Confederate army as a
private soldier in Lewis Maverick's company, but

148 The Supreme Court op Texas

later organized a cavalry company which he com-
manded until the close of the Civil War. There-
after he located at Clinton, DeWitt County, where
he secured employment as school teacher. In 1866
he formed a law partnership with Samuel C. Lackey,
which became a leading and successful firm. In
1871, Major A. H. Phillips, of Victoria, became a
member of the firm, when Mr. Stayton removed to
that city, which became his permanent home. In
1884, being earnestly solicited by citizens of his
congressional district to offer for Congress, he
was inclined to comply with their request until pe-
titioned by a number of the leading lawyers of
Texas to retain his position upon the Supreme Court,
which he did out of deference to their wishes.

In the lives of few public men is there a more
pathetic and heroic example of successfully over-
coming apparently unsurmountable obstacles to the
achievement of a cherished ambition, than that ex-
hibited by Justice Stayton in his seemingly hopeless
struggle against conditions sufficiently discouraging
to appall the stoutest heart; while the simple, yet
semi-tragic, story of his privations and crowning
success, exemplify the truth of Cardinal Eichelieu's
noted expression, "In the bright lexicon which youth
reserves for age — there's no such word as fail!" In
physique, temperament, intuitive sense of justice,
and superior intellectuality, he markedly resembled
that greatest American jurist, Chief Justice Mar-
shall of the Supreme Court of the U/nited States.

"When called to the Supreme Court of Texas,"
says the Texas Bar Association, 1 "he came unher-

187 Texas, vi.

The Supreme Court of Texas 149

aided, and to many of the profession, unknown, 1
but it was soon made manifest that there had come
from a quiet country town a lawyer in deed and in
truth, and day by day and year by year, he grew
and strengthened in the esteem of and the affection
of the bar and people; and when he reached the
exalted position in which death found him, all men
knew that it had never been more worthily filled,
and that never had the ermine fallen upon one more
fit to wear it, nor who would more nobly sustain
that lofty standard of judicial ability and integrity
which for nearly fifty years has characterized the
Supreme Court of Texas. . . . Behind the
lawyer and the judge was, if possible, the more
admirable man. Calm, self-possessed, forcible, dig-
nified, yet never austere, 'he stood four square to
every wind that blew,' with an integrity so lofty
and personal and official purity so spotless, that
truth could not, and malice dare not assail him.
The same courage, ability, and persistency which
lifted him from obscurity and poverty to exalted
position marked his whole career, and in every field
of endeavor he was the same brave, earnest man."
The appointment of Justice Stayton was entirely
unsolicited, while the telegram tendering him the
office was as much of a surprise to him as to lawyers

iWhen the announcement was made that John Stayton had been ap-
pointed Associate Justice of the Supreme Court, few lawyers and still
fewer non-professional citizens had ever heard of him — for Stayton
was essentially a lawyer, and not a politician — the frequent inquiry
being, "Who is he?" When this question was asked Governor Rob-
erts, who made the appointment, he replied, "You do not know him
now, but when he serves on the court a while, you will know T»tti |
without the necessity of an introduction."

150 The Supeeme Cotjrt of Texas

and politicians of the State who had never heard
his name. "The chief executive who made the ap-
pointment," says a distinguished judge, 1 "was not
only eminent as a Governor, but one of the most
distinguished jurists who ever presided over the
Supreme Court. There was no citizen of the State
better qualified to select from its bar a judge of its
court of last resort than he who had so long adorned
its bench, and who had been the Chief Justice in the
court in which the vacancy was to be filled. The
appointment so made was neither sought by Judge
Stayton himself nor solicited on his behalf by
friends. . . . We have reason to think that the
honored chief magistrate who first selected him for
promotion has ever regarded his appointment as one
of the most praiseworthy acts of his long and dis-
tinguished career."

A brother Justice 2 who shared his labors upon the
court, ascribes Justice Stayton 's success to a thor-
ough mastery of the general principles of the law,
and the mental habit of primarily looking to those
principles as a guide, and building upon them, by a
train of close, logical reasoning, his conclusions and
the framework of his opinions.

In Ball, HutcMns & Company vs. Lowell, 3 Justice
Stayton dissented from the majority opinion hold-
ing that when the husband dies leaving a homestead
established on the separate property of the wife, no
allowance in lieu of a homestead should be made out
of the effects of the husband. Quoting the statutes

iChief Justice Gaines.
Uudge R. S. Gould.
356 Texas, 579.

The Supreme Court of Texas 151

relating to the homestead exemption, and allowances
in lieu thereof in the absence of the same, at the
death of the husband, Justice Stayton admitted that
the separate property of the wife may have been
the homestead of the family during the life of the
husband, yet that it was certainly true that such
property could not be considered as being "among the
effects of deceased," that is, property pertaining to
the estate of the deceased husband, within the purview
and intention of the statute providing that exempt
property, if it exists in kind, should be taken out
of the estate of the deceased husband, and that if
no such property existed among the effects of the
deceased, an allowance in lieu thereof should be
taken from property belonging to his estate ; because
it was in lieu of the property not found among the
effects of his estate, that the allowance should be
made. He believed that had it been the intention of
the Legislature that if the family of the deceased
husband should have no allowance out of Ms estate,
in case the wife owned a homestead in her separate
light, that it would have been so easy for it to have
said so, that he could not believe that it was so in-
tended in the absence of a declaration to that effect.
"The facts," says the dissenting opinion, "in ad-
dition to what seems to me to be the true import
of the language used by the Legislature, force upon
me the conviction that the fact that the wife may
own a homestead, yea, a homestead made her sep-
arate property from the gift of the husband, which
is but her separate property, however acquired,
cannot deprive her, or his children by her, or the
children of the husband by a former wife, of the

152 The Supreme Court of Texas

right to an allowance in lieu of homestead, out of
the huband and father's estate. Nor am I prepared
to say, when the statute provides as it does, a means
by which creditors who take liens upon property
may so secure it, that it will not be subject to sale
to make up allowance in lieu of exempt property
(R. S. 2000), if they fail to do so, that legislation
which appropriates property as I believe it ought
to be under the law, in this case, should shock the
moral sense of mankind as being against the common
dictates of justice and equity. The whole matter
was one for legislative discretion, which we must pre-
sume has been exercised wisely; but whether so or
not, I have a deep conviction that I have no right to
dispose of the question in accordance with my own
sense of abstract right or equity, if the same be in
conflict with the expressed intention of the Legisla-
ture. If the spirit of the law be bad, let it be re-
pealed by that department of the government whose
duty it is to make and repeal laws. Entertaining the
views which I do in regard to the construction of
the statutes, I cannot assist in repealing thereby
a construction which my judgment does not ap-
prove."

In view of the circumstance that had prece-
dents have originated in the action of courts in
judicially repealing or modifying laws incompatible
with their sense of abstract justice, it is regrettable
that there are not more judges of tribunals of last
resort entertaining similar views to those expressed
by Justice Stayton on the subject of judicial repeals.

In November, 1882, Asa H. Willie was elected
Chief Justice to succeed Justice G-ould, and Charles

The Supreme Court or Texas 153

S. West was elected Associate Justice to succeed
Justice Bonner, who retired from the court at the
expiration of his term.

Charles Sherman West was born in Camden,
Smith County, South Carolina, September 4, 1829.
His first public service was as sheriff of Kershaw
District. Thereafter he was employed for several
years as cashier of the Camden Bank. After re-
ceiving a preparatory course of instruction, he at-
tended the College of South Carolina, graduating
from that institution in 1848. During the years
1849-50, he was employed in teaching school at
Pleasant Hill, devoting his spare time to the study
of the law under the supervision of James Chestnut,
afterwards United States Senator, and later a mem-
ber of the staff of President Davis. In 1851 Mr.
West was admitted to the bar, and entered the
practice at Camden. He removed to Texas in the
autumn of 1852, locating at Austin, which became
his permanent home. In 1854 he formed a law
partnership with Colonel H. P. Brewster. In 1855
he was elected Representative in the Sixteenth Leg-
islature for the Austin district, and served with
distinction in that body. In 1856 he formed a law
partnership with John Hancock. In 1861 became
Secretary of State under Governor P. R. Lubbock;
in 1862 he entered the Confederate army as Ad-
jutant-General, with the rank of captain. He served
during the Civil War on the staffs of Generals
Herbert, Bankhead, Magruder, Scurry, and E. Kir-
by Smith, respectively. He was promoted to the
rank of major for gallantry in the battle of Jen-
kins' Ferry. Thereafter he became Judge- Ad-

154 The Supreme Court of Texas

vocate in the Trans-Mississippi department of the
Confederate service. At the close of the war he re-
turned to Austin and resumed the practice in co-
partnership with the Hon. John Hancock, a firm
which became noted as among the strongest and most
successful in the State.

While a capable Judge, it was an advocate that
Justice "West achieved that distinction which was
the basis of his merited reputation as one of the
ablest lawyers in a State noted for the strength
of its bar. "He appeared," says an eminent author-
ity, 1 "to equal advantage in court, whether his sub-
ject was one of civil or criminal law, common law
or equity, statutory or constitutional law, the law
merchant, or law of realty. No narrow circle con-
fined the progress of his attainments in ascending
to distinguished eminence in his profession. . . .
He was Judge-Advocate of the Trans-Mississippi
Department, and was prosecutor in a very im-
portant trial before a court-martial, in Louisiana,
in 1863, which I witnessed. In that position he had
the power to make the trial partake of persecution
in the manner of conducting the prosecution. It
lasted three weeks. His courtesy, liberality and
ability in the discharge of his duty challenged the
admiration of the court and all who witnessed the
trial. Having been a member of this court four
times, and having served with ten others, and with
some of them several times, I may be allowed here
and now to refer to some matters pertaining to it,
especially as I may never again be called upon to

iQovernor O. M. Eoberts.

The Supreme Court of Texas 155

perform a similar duty. Its labors and responsi-
bilities are so great tbat very few men are able to
remain on tbe bench many years continuously with-
out having their health impaired and their lives
shortened. Chief Justice Hemphill, Wheeler and
Moore were notable instances of this, and it may be
that both Justices Bonner and West, going from a
heavy practise at the bar to seats on the bench,
found its labors to be beyond their powers of en-
durance. Another matter worthy of notice is, that
few of the members of this court have had time or
opportunity to improve their pecuniary condition,
and when worn out in its service are not provided
for as they are under some governments. Prom
these facts we are forcibly admonished (and my age
and condition in life are such as prevent me from
saying it from any imputable motive of self-inter-
est), that measures should be speedily adopted to
diminish the labors of the members of this court,
and to increase their compensation, while they may
be able to give their services to its duties."

"It is as a lawyer," said a distinguished member
of the Supreme Court, 1 "that he (Judge West)
was pre-eminently distinguished and has impressed
himself upon the memory of his contemporaries.
In the nisi prius or appellate courts it may be well
said that he had few equals. ... In his pre-
sentation of facts to a jury and law to the court,
he could not be excelled. The records of the Supreme
Court and the memory of its judges can well attest
the logical force of his arguments and the per-

iChief Justice Willie.

156 The Supreme Court of Texas

spicuous language in which they were presented.
. . . His name appears in our reports per-
haps oftener than any of the past or present mem-
bers of the bar."

In Gulf, Colorado & Santa Fe Railway Company
vs. Levy, 1 the court in an opinion rendered by
Justice Stayton, denied the right of a person to
maintain an action for damages for mental anguish
against a telegraph company for negligence in trans-
mitting a message, where no pecuniary loss resulted
from such negligence ; overruling So Belle vs. West-
ern Union Telegraph Company, hereinbefore noted.

The case of Houston & Texas Central Railway vs.
Simpson, 2 was the first of those known to the pro-
fession as "the turn-table cases," in which judg-
ments for damages against railroad companies for
injuries to children playing upon unfastened turn-
tables on the premises of those corporations, were
sustained, among other theories, upon the conception
that such mechanisms were attractive to children,
inviting their use as playthings. In the opinion
rendered by Justice Stayton, a verdict for $3,500
was sustained. "It appears," says the opinion,
"that the turn-table was not inclosed, and near a
pond to which boys were accustomed to go for the
purpose of fishing. The entry upon such a place
was not a traspass in a child which would deprive
it of the right to recover for an injury resulting
from the attempted use of a dangerous machine to
which children would be attracted for sport or

159 Texas, 543.
260 Texas, 103.

The Supreme Court or Texas 157

pastime, for it is the duty of every person to use
due care to prevent injury to such persons, even
from dangerous machinery upon the premises of
the owner, if its character be such as to attract
children to it for amusement."

The case of Faulkner vs. House, 1 which incident-
ally touches upon interesting historical data con-
nected with an attempted State bond issue in aid
of the construction of the International Railway
Company, and which culminated in the noted "com-
promise" act, is interestingly suggestive of legislative
methods which were the origin of the issues involved.
The action was brought by A. Faulkner as assignee
before maturity of the following obligation in
writing:

"Austin, Texas, August 3, 1870.

"In consideration of services rendered and of
the payment of $1 to us in hand paid, we, the under-
signed, for ourselves and in behalf of the corpor-
ators of the International Railroad Company, do
hereby promise Henry B. Andrews that we will
deliver to him or to his order $5,000 in bonds to be
issued in aid of said road by the State of Texas,
said bonds to be delivered as soon as the first in-
stallment thereof is issued to the directors of said
road by the proper authorities of the State of
Texas.

T. W. HOUSE."

Plaintiff alleged that the International Railroad
Company never received the bonds authorized to be
issued to it by an act of the Texas Legislature ; that

161 Texas, 308.

158 The Supreme Cotjet of Texas

the Comptroller refused to sign said bonds, and that
the Supreme Court sustained his refusal; and that
thereafter the company accepted other subsidies
from the State in lieu of said bonds, without the
consent of plaintiff, so he could not demand the
identical bonds mentioned, by reason whereof de-
fendants became indebted to plaintiff in the sum of
$5,000, for which he prayed judgment. It was
further alleged that the instrument sued on was
executed for a valuable consideration to Henry B.
Andrews, to be by him delivered to one Craw-
ford for services and expenses of said Crawford,
rendered to the obligors in said bond, and which
were reasonably worth and were by them estimated
and valued at $5,000, and that the said obligation
was for bonds to be delivered to him in discharge
of said services, and which by the said Henry B.
Andrews, was delivered and indorsed to W. A. Say-
lor for the said Crawford, and at the instance and re-
quest of said Crawford the said Saylor sold and
delivered the same to plaintiff for a valuable con-
sideration."

In this connection the reporter of the court re-
corded the following reference to "public history"
as an aid to a clearer understanding of the facts of
the case:

"The bonds referred to were those to issue under
the provisions of a bill which passed two days
afterwards through the Texas Legislature, charter-
ing the International Railway Company, and pro-
viding for a bonus to be given it by the State in
State bonds at the rate of $10,000 for each mile
of road to be constructed. It may be stated as a

The Supreme Court or Texas 159

matter of public history that the bonds provided for
by that act were never issued, and that Saylor, who
seems to have been the agent of one Crawford,
whose given name does not appear, was a member
of the State Senate when the act passed which
authorized the issuance of the bonds."

In the opinion rendered by Justice Stayton it was
held that the instrument sued on was not a contract
for the sale of bonds, as, at the date of it the bonds
had not potential existence ; that the delivery of the
bonds was conditional upon their issuance; and as
they were never issued, plaintiff was not entitled
to recover.

There was another defense, it seems, that the
defendants could have interposed with equal suc-
cess, but probably for reasons which will readily sug-
gest themselves to the professional mind, it was not
presented to the court.

The case of Jones vs. George, 1 contains an inter-
esting exposition of the law of implied warranty,
proximate cause, and measure of damages for the
loss of growing crops for breach of implied war-
ranty. A farmer engaged in growing Sea Island
cotton, and whose crop was being damaged by cot-
ton worms, purchased of a druggist Paris green for
use in preparing a compound for the destruction
of said worms. Instead of delivering him Paris
green, the druggist supplied Chrome green, a harm-
less drug, which when used in said compound and
applied to a hundred and twenty-four acres of his
cotton, totally failed to destroy the cotton worms,
which, in consequence, destroyed the crop.

"The liability of the appellee, under the fact in

160 The Supreme Court of Texas

evidence," says the court, speaking through Justice
Stayton, "is as broad as though he warranted the
substance delivered as Paris green." Following an
able review and discussion of leading authorities,
the court held that the failure to supply Paris
green was the proximate cause of the destruction of
the crop; and that the measure of damages for the
injury thus sustained was the value of the crop
as it stood, just before it was destroyed by the
worms, with the cost of the compound used, and the
further cost of its preparation and application to
the cotton, with interest upon the amount thus ex-
pended.

In Belo & Company vs. Wren, 1 there is an inter-
esting discussion of privileged matter under the
Texas libel law, in connection with the reaffirm-
ance of elementary principles of the law of libel es-
tablished by adjudicated precedents. The import-
ant issue in the case was whether certain testi-
mony taken ex-parte by a legislative committee
in the investigation of a land fraud conspiracy, and
deposited in the Attorney-General's office, was priv-
ileged matter. The testimony thus taken was copied
by a representative of the Galveston News, owned
and published by appellants, who, after consulting
counsel, and being advised that it was privileged
matter, published the same. Appellee, claiming the
publication as libelous of his character, by reason
of certain references to his conduct and supposed
connection with said land fraud conspiracy, in-
stituted suit for damages against appellant, and
recovered a judgment for $7,500.

163 Texas, 686.

The Supreme Court of Texas 161

In an able opinion by Chief Justice Willie* hold-
ing that the publication was not privileged, the
court says:

"There may be cases where a preliminary and
ex-parte proceeding would be privileged, but as to
this we do not decide; but when to these two con-
ditions is added that fact that the proceeding is con-
ducted in secret, we know of no principle in the law
of libel that will protect the publication. Ex-parte
proceedings have been held privileged where there
was a right in the accused to appear and defend
himself. If privileged where this was not the case
it was on the ground that they were open and might
be attended by the public, and that their publica-
tion was therefore merely an enlargement of the
area to which a knowledge of the proceedings would
otherwise extend.

"But if merely preliminary, and at the same
time ex-parte and secret, no policy of the law can
be subserved by their publication which is not over-
borne by the damage which may result to the reputa-
tion of individuals. The accused may escape by
reason of having publicity given to the preliminary
proceeding upon which his prosecution is to be based.
A person may have his case prejudged, and himself
found guilty in public opinion so as to deprive him
of a fair and impartial trial, without any oppor-
tunity of defending himself in the preliminary pro-
ceeding; or he may have his character traduced
without the slightest intimation that it will be the
subject of investigation and discussion. It is true
that the same thing may happen in a public trial,
but what occurs there is open to the world ; and what

162 The Supreme Court of Texas

the public are entitled to witness may in many
instances be disclosed to it through other channels.
Even this, however, is not a universal rule, as there
are cases in which defamatory matter may be spoken
in privileged places, when its publication at other
places would constitute libel. . . . This is always
the case when the proceeding in which it is uttered
is of a secret character.

"We think the privilege of publishing defamatory
matter is confined strictly to proceedings of a ju-
dicial or quasi judicial or legislative nature, and,
if preliminary and ex-parte, they must at least be
openly conducted and subject to the inspection of
the public. This is as far as it is necessary for us
to go in the case now under consideration, to which
case let us apply the principles above announced.

"The joint committee appointed by the legis-
lature of Texas, before whom the defamatory words
published by appellant were spoken, was not a body
possessing either judicial or quasi judicial powers.
It determined nothing ; exercised its judgment upon
no questions requiring judicial action; did not even
procure evidence which could be recognized in a
court of justice for any purpose whatever. It simply
obtained the statements of witnesses under oath,
to be used, not in a court of justice, but as a guide
to attorneys representing the State in bringing
offenders against her criminal laws to justice.

"Nor can its proceedings in strictness be termed
legislative. The committee was appointed by the
Legislature and was composed of members of that
body ; but it was to do nothing in aid of legislation —
it was not even to report anything for legislative

The Supreme Court of Texas 163

action. The duties required of it, and the powers
granted it, could as well have been discharged and
exercised by persons not in any manner connected
with the Legislature. The result of its labors were
never necessary to come to the knowledge of that
body, nor to form part of its records in any man-
ner whatever. They were an irregular and irre-
sponsible committee, exercising doubtful powers,
and formed for no purpose connected with the duties
of the body from whom they derived their appoint-
ment. It would seem, therefore, rather a stretch
of the meaning of the term " legislative" to apply it
to the proceedings of such committee.

"But admitting that they were legislative or ju-
dicial, or both, what was the object of their pro-
ceedings and how were they conducted? Their ob-
ject was to obtain evidence by which the State's
counsel might be guided in instituting criminal pros-
ecutions against the perpetrators of land frauds and
forgeries. The proceedings of the committee did
not arise to the dignity of those of a grand jury
or of a justice of the peace making a preliminary
examination. These are filed in courts, and upon
them a capias may issue and the offender be arrested
and thrown into prison. Upon the action of this
committee no such criminal process could be found-
ed, and a seizure of any person under a writ issued
as one of the results of their proceedings would only
have laid the basis for an action of false imprison-
ment. So far from ever becoming a part of the
records of a court, the purposes of the committee's
formation were fully satisfied if the evidence pro-
cured by them was placed in the hands of any

164 The Stjpkeme Couet of Texas

attorney employed by the State to prosecute land
frauds and forgeries. Its proceedings, therefore,
have not the slightest imaginable claim to being
called even a preliminary examination, in the legal
sense of that term.

"Moreover these proceedings were in their very
nature essentially ex-parte — so designed to be by
the resolution creating the committee, and such was
the practical construction given them by the com-
mittee itself. No party whose connection with land
frauds inquired into was ever allowed to appear
before it, and produce witnesses in rebuttal of
the evidence adduced against himself. The inquisi-
tion was established for the purpose of prosecution
only; any defense the accused might have was re-
served for the trial of the cause, when he was
brought before the courts to answer the prosecution
based upon the committee's evidence.

"Again, the proceedings were secret — carried on
with closed doors, and in the presence only of the
committee, their clerk and persons interested solely
in the prosecution of the frauds developed by the
evidence. There may have been occasionally two
witnesses in the room at one time, but this was an
exceptional case and did not deprive the proceedings
of their general secret character.

"It was obviously necessary that the proceedings
should be kept secret, otherwise offenders having
notice of the evidence given against them would
place themselves beyond the reach of the law. It
was proper, too, in order to prevent innocent per-
sons, against whom perjured witnesses might bring

The Supreme Court of Texas 165

accusations, from suffering in the good opinion of
the public.

"The fact that the evidence taken before the com-
mittee might be filed in the attorney-general's office
does not affect the question. The joint resolution
would have been satisfied if this evidence had been
committed to the State's private counsel alone. This
shows that it was not intended to be made an archive
of a public office ; but, taken in connection with the
purpose for which the committee were appointed,
clearly shows that its contents were to rest within
the knowledge of the State's chosen prosecuting of-
ficers, to be witheld by them from the public until
the parties implicated in land frauds by the evi-
dence should be placed within the grasp of the
criminal law. Confidential communications between
himself and his client, and papers committed to his
inspection in reference to prosecutions like the pres-
ent, must not be divulged before the prosecutions
have been commenced or abandoned; otherwise the
whole object of the proceedings would be thwarted.

"We do not think that it was his duty — not even
his privilege — to give copies of the evidence to per-
sons requesting them of him. This might end in
giving information to the accused, such as it was
never intended he should receive in advance of his
arrest or indictment. If the contents of the evi-
dence could not be made known to a few, through
copies taken from the attorney-general's office, it
certainly could not be published to the world through
the newspapers. The plastic nature of the common
law does not allow us, in deference to the improve-
ments of modern times, and the advancement of news-

166 The Supkeme Court of Texas

paper enterprise, to so vary the cardinal principles
of the law of libel that proceedings required by the
policy of the law to be kept absolutely secret may
be published to the world in the columns of a news-
paper. We cannot defeat the ends of justice, and
the objects of the criminal law, for the purpose
merely of satisfying the public cravings for news
and information.

"Every facility should be allowed for the quick
transmission of useful facts, and the freedom of
the press should not be restrained further than is
absolutely necessary to protect private character
from falsehood and slander. But public policy
alone protects defamatory statements made through
the press, and they cannot be shielded when made in
defiance of one of the plainest principles of law
established solely for the public benefit. We there-
fore conclude that the defamatory matter com-
plained of by the appellee, and proven to have been
published by the appellants, was not of a privileged
nature." The judgment of the court below was
affirmed.

CHAPTER VI.

1885-1895.

Sawnie Robertson Succeeds Associate Justice West — Sketch of
Justice Robertson — Stuart vs. Western Union Telegraph Com-
pany — Mental Anguish as Actual Damages — Reuben R.
Gaines Succeeds Justice Robertson — Sketch of Justice
Gaines — Brenham vs. Water Company — A Contract Con-
trary to the Spirit of the Constitution — Edwards vs. Brown
— Some General Principles of Conscience and Equity —
Price vs. Supreme Lodge Knights of Honor — "Graveyard"
Insurance — John W. Stayton Succeeds Chief Justice Willie
— A. S. Walker Appointed Associate Justice — Sketch of
Justice Walker — John L. Henry Succeeds Justice Walker —
Sketch of Justice Henry — Gulf, Colorado & Santa Pe Rail-
way Company vs. State — Illegal Combination of Competing
Railway Lines — Little vs. State — County Court Judges Not
Required to Know the Law — State vs. Galveston, Harris-
burg & San Antonio Railway Company — Touching Dis-
position of Public Domain — Dissenting Opinion by Chief
Justice Stayton — Number of Judges of Commission of
Appeals Increased Prom Three to Six — Ewing vs. State —
Incorporating the "Countryside" — Ewing vs. Commission-
ers' Court of Dallas County — Expiring Effort in a "Friend-
ly Move" — State vs. Land & Trust Company — Requisite
Interest in Subject Matter of Suit — Canfield vs. Gresham —
Legislative Contempt Proceedings — Constitutional Amend-
ment Changing Jurisdiction and Procedure of Supreme
Court — Act of Legislature in Pursuance of Authority Con-
ferred by Constitutional Amendment — Creation of System
of Courts of Civil Appeals — Darnell vs. Lyon — Thomas J.
Brown Succeeds Justice Henry — Sketch of Justice Brown —
Construction of Section of the New Law — Chief Justice
Stayton 's Dissent — Queen Insurance Company vs. State —
Construction of Anti-Trust Law — Scott vs. State — The
Retort Discourteous: Comparison Odious — Texas & Pacific
Railway Company vs. Gay — Able Opinion by Chief Justice
Stayton — Death of Chief Justice Stayton — Reuben R.
Gaines Appointed Chief Justice — Leroy G. Denman, As-
sociate Justice — Sketch of Justice Denman.

168 The Supreme Court of Texas

September 29, 1885, Associate Justice West re-
signed, and Sawnie Bobertson was appointed As-
sociate Justice, October 6, 1885.

Sawnie Robertson was born in La Fayette, Ala-
bama, October 5, 1850. In 1851 bis parents removed
to Texas, locating at Tyler. He was educated in the
excellent schools at Tyler and G-ilmer. In connec-
tion with the academic course of the Gilmer school,
ex-Chief Justice Roberts at that time conducted a
law school, from which young Robertson graduated
in 1870. This course of instruction, under the super-
vision of that most capable of preceptors in the
science of law, admirably equipped Mr. Robertson
for the attainment of eminence in his profession in
subsequent years. He was admitted to the bar on
December 29, 1870, before reaching his majority.
He was immediately successful, and in a few years
acquired a large and remunerate practice. The ra-
pidity of his advancement to a premier position at
the bar is evidenced by the circumstance that when
only 35 years old, at the unanimous request of the
bar, he was appointed Associate Justice to succeed
Justice West. It is said that, with probably one
exception, he was the youngest man who ever oc-
cupied a position on the Supreme Court of Texas.

"As a jurist," says one who knew him intimately, 1
"his place is securely fixed with the illustrous men
who have given character to our highest tribunal.
In an eminent degree he possessed the broader and
better qualities of a great judge. He loved justice,

iSenator Culberson.

The Supreme Cottrt op Texas 169

and was endowed with a rare and exceptional ju-
dicial temperament. To a rich store of common
sense he added the conservatism of fairness and the
ripening powers of a strong legal mind. Pro-
foundly cherishing the law, and deeply grounded
in its philosophy and maxims, he was thoroughly
equipped for its interpretation along its nobler lines.
In the administration of justice he was without
friend or foe, and prejudice and partiality were
strangers to him. While he was impressed with the
importance of precedents, whenever in his judg-
ment it was demanded by wholesome consideration,
he did not hesitate to explore new fields or apply the
elasticity of legal principles to changing conditions.
. . . Many believe, however, that he exhibited
his greatest powers and achieved his most marked
success at the bar. It was there he presented con-
spicuously a striking personality and wielded a dis-
tinctive force. It was there, also, that he exerted
his noblest influence, for his tone of character was
exalted and his daily intercourse with his associates
tended to the dignity and elevation of the profes-
sion ; and it was there that he was loved and honored
for his forensic genius, his unbought courtesy, and
his nobility of soul. With his extraordinary legal
acquirements, his distinguishing traits as a lawyer
were his deferential regard for the courts before
which he appeared and his magnanimous considera-
tion of opponents."

Those who served with him upon the bench unite
in high tribute to the judicial powers and profes-
sional attainments of Justice Robertson, "whose

170 The Supreme Cotjbt of Texas

opinions calmly reach and deal with every material
question in a cause, but are concise, and in reason
and in style most forcible."

Associate Justice Robertson resigned in October,
1886, and in November, 1886, Reuben R. Gaines was
elected to fill the vacancy.

Reuben R. G-aines was born in Sumpter County,
Alabama, October 29, 1836. His parents thereafter
removed to Adams County, where he was reared to
manhood. In 1855 he graduated from the Univer-
sity of Alabama, and, in 1857, received his law de-
gree from Cumberland Law School at Lebanon,
Tennessee. He engaged in the practice of law until
the outbreak of the Civil War, when he joined the
Confederate Army, in which he served under General
John Morgan of Alabama, and later with Gen-
eral Anderson, as adjutant of brigades commanded
by those officers. At the close of the war he removed
to Texas, locating in Red River County in 1868,
where he successfully engaged in the practice and
established his reputation as a leading member of
the Texas bar. He formed a law partnership with
B. H. Epperson, remaining in that firm until 1876.
In that year, at the unanimous solicitation of the
bar of his district, he accepted the nomination for
the office of District Judge of the Sixth Judicial
District, composed of the counties of Red River,
Lamar, Fannin, and Grayson, and was elected
without opposition, and re-elected to that posi-
tion at the expiration of his term. He voluntarily
retired from the district bench after eight years of
distinguished service to engage in the practice of law
at Paris.

The Supreme Court of Texas 171

Justice Gaines was one of the ablest judges who
has adorned the Supreme Court of Texas. His
long service and enlightened labors in that tribunal
rank with those of Lipscomb, Hemphill, Wheeler,
and Roberts, greatest of judges connected with our
judiciary. His opinions, in volumes 66 to 103 of
the Texas Reports, disclose his pre-eminent judicial
learning and mastery of the principles of the law.
The period of his service upon the Supreme Court
was an epoch in the development, progress and ad-
vancement of the State in all lines of business and
commercial endeavor — a transition from semi-pio-
neer conditions to a state of modern development,
in which questions of greatest importance and far-
reaching influence upon the State and its citizens
were constantly arising for decision in its court of
last resort. No justice who has ever served upon the
court was better equipped to uphold the splendid
history and traditions of the court under the newer
conditions by the wisdom and justice of his decisions,
than was Justice Gaines, as his opinions abundantly
show.

Justice Gaines possessed the retiring, unobtrusive
disposition which is always a conspicuous attribute
of true greatness, which courts neither the favor
nor friendship of those in the seats of the mighty,
nor patronizes the lowly, his chosen companions
being for the most part those in the subordinate and
humble pathways of life. He recognized and appre-
ciated merit for its own sake, irrespective of the
social, commercial or political prestige of its pos-
sessor. Essentially a judge, as contradistinguished
from a politician, in no instance was he ever known

172 The Supreme Court of Texas

to deliver a political speech in his own behalf, or that
of others. His refined sense of the dignity of the court,
and his reverential respect for the judicial ermine
were such that he discountenanced and discouraged
conduct tending to a suspicion of its political pol-
lution. Firm in his convictions, he was vigorous in
their advocacy, regardless of their effect upon the
policies or ambitions of political leaders or their
power to visit their displeasure upon him. As a true
gentleman, devoted friend, courageous soldier, just
judge, and exemplary citizen, Justice Gaines will
be gratefully remembered by those who knew him
best.

In Stuart vs. Western Union Telegraph Company 1
the court in an opinion rendered by Associate Jus-
tice Robertson, held that mental anguish resulting
from the negligent failure of a telegraph company
to deliver a telegram announcing the fatal illness
of a relative was actual damage and recoverable
as such. The rule announced was thereafter sub-
jected to severe criticism, while some of the Federal
courts, including the United States Circuit Court of
Appeals of the Fifth Circuit, declined to follow it.
Later, however, it was adopted by the courts of
Indiana, Tennessee, Alabama, and some other States,
and was affirmed by an equal division of judges of
the Supreme Court of the United States when a va-
cancy existed on that tribunal. 2

In Breriham vs. Water Company" the court held
that a municipal corporation could only exercise

166 Texas, 580.
2140 U. S., 682.
8R7 Texas, 542.

The Supreme Cotjkt of Texas 173

such powers as were expressly granted by its char-
ter; powers necessarily or fairly implied as in or
incident to powers expressly granted; powers essen-
tial to the objects and purposes of the corporation;
and that any reasonable doubt as to the existence
of such powers should be resolved against the cor-
poration.

In denying the power of the city of Brenham to
contract with a water company for the exclusive
privilege of supplying said city with water for a
period of twenty-five years, the opinion rendered
by Associate Justice Stayton says:

"On August 18, 1884, the City of Brenham passed
an ordinance which provided that an association of
persons, then unincorporated, known as the 'Bren-
ham Water Company,' should have the right to es-
tablish, construct and operate a system of water
works in or adjacent to the city, and for this pur-
pose to use all streets, alleys, lanes, public grounds,
and all places under the control of the city, so far as
might be necessary for the proper conduct of the
business 'and for supplying said city and the inhab-
itants thereof with fresh water for domestic, man-
ufacturing, fire and other purposes.' . . .

"The ninth section secured to the city the right to
purchase the water works, after the expiration of
ten years, at such price as might be agreed upon
by persons to be selected as therein provided, whose
appraisement was to be binding on both parties.
. . . Section 1 was: 'That there is hereby given
and granted to Brenham Water Company the right
and privilege, for twenty-five years from the adop-
tion of this ordinance, of supplying the city of

174 The Supreme Court of Texas

Brenham and the inhabitants thereof with water for
domestic or other uses and for the extinguishment
of fires.'

"The sixth section provided that 'the said Bren-
ham Water Company shall make all extensions of
mains and pipes whenever the city council shall or-
der the same to be made, and shall erect not less
than at the rate of ten double nozzle fire hydrants to
the mile on such extensions, for which hydrants the
said city of Brenham shall pay a rental of sixty
dollars each per annum.' . . .

"This action was brought to recover the price
stipulated for the use of hydrants between June 1,
1885, and January 1, 1886. . . . The subject
matter of the contract was one over which the city
had control solely under the power confided to it as
a municipal government, to be exercised for the pub-
lic good, and not under any private corporate right
of proprietorship. The first section of the ordi-
nance professes to give and grant a privilege to the
water company to supply the city and its inhabitants
with water for the period of twenty-five years.

"Was it intended to make this right and privi-
lege exclusive for that period of time 1 ? This must
be ascertained from the language of the ordinance,
the surroundings of the parties, and the purpose
sought to be accomplished. The ordinance, in terms,
professes to give and grant a right to do certain
things and therefor to receive certain benefits for a
quarter of a century, i. e., to confer a claim to do
certain things, and to receive a fixed compensation,
which may be enforced for that period.

"It not only professes, in general terms, to con-

The Supreme Court or Texas 175

fer such a right, but, as if to emphasize it, and to
fully illustrate the character of right intended to
be granted, it terms it a privilege. The word 'priv-
ilege, ' as used in the ordinance, is evidently not used
in the technical sense in which it is used in the civil
law, or even under the common law, where used in
the sense of 'priority,' but was intended to be given
its ordinary signification, meaning a right peculiar
to the person on whom conferred, not to be exercised
by another or others.

"This right is to supply the city and its inhabi-
tants with water for their varied uses for twenty-
five years, at fixed prices in enumerated cases, and
at such prices as the water company and the inhab-
itants may agree upon in other cases. The word
'supplying' must be considered in its connection
with a view to ascertain whether it was used in its
primary sense -or in one more restricted; and, so con-
sidered, we can have no doubt that it was used in
its primary sense, intending thereby to give to the
water company the right and privilege to furnish
the city and its inhabitants what water might be
needed or necessary to be furnished through such
system.

"In the ordinance under construction it can mean
no less than to furnish all the water the city and
its inhabitants may need to have furnished under
the power given to the city through its charter, and
this for the period of twenty-five years. It would
do violence to the context to give to the word any
other meaning. If nothing more appeared than we
have considered, to give character to the contract
and to illustrate the nature of the right intended

176 The Supreme Court of Texas

to be secured through it, it seems to us that there
is uo escape from the conclusion that the parties
contracted and intended to contract that the right
of the water company should be exclusive. . . .

"No express power is conferred upon the city,
through either or both charters (that of the city
and the water company), to make a contract through
which the water company could be entitled to the use
of the streets, and to have the exclusive right to fur-
nish the city and its inhabitants with water at a
fixed rate for twenty-five years; and we do not see
that power to make such a contract was necessary
or essential to the proper exercise of the power ex-
pressly given. Under charters containing grants of
powers less full and express than are contained in
the charter of the city of Brenham, it has been held
that power existed to erect and operate water works
under the control and ownership of the municipality
when it deemed it necessary to the public good. The
Legislature had given power to the city of Brenham
to erect, control and regulate water works, and this
it may exercise, if it has or may have the pecuniary
ability, unless restrained by the contract under con-
sideration.

"It is now universally conceded that 'powers are
conferred on municipal corporations for public pur-
poses, and as their powers cannot be delegated, so
they cannot be bargained or bartered away. Such
corporations may make authorized contracts, but
they have no power, as a party, to make contracts
or pass by-laws which shall cede away, control or
embarrass their legislative or judicial powers, or

The Supreme Court or Texas 177

which shall disable them from performing their
public duties.' 1 . . .

"Will not the contract under consideration, if
valid, have the effect, not only to embarrass the city
government in the exercise of the power conferred
upon it, but to withdraw from it the right to pro-
vide in any other authorized way water for public
purposes and the use of its inhabitants, which was
the sole purpose for which the power to erect, main-
tain and regulate water works was given to it? It
seems so to us, for, as we have before said, the con-
tract in effect assumes to give an exclusive right—
assumes .to surrender to a private corporation for a
period of twenty-five years the power which the
Legislature conferred on the municipal government.
The power given to a municipal corporation to con-
tract in relation to a given subject matter, does not
carry the implication that it may contract, even with
reference to that, so as to render it unable in the
future so to control any municipal matter over which
it is given power to legislate as may be deemed
best. . . .

"We are of the opinion that the exercise of the
exclusive rights conferred upon the water company-
produce the same results as would the exercise of
any exclusive right which would fall within the
most exacting definition of a monopoly, and that
the allowance or creation of such exclusive rights is
contrary to the spirit of the Constitution of this
State.""

iDillon on Municipal Corporations, 97.

178 The Stjpeeme Court of Texas

In Edwards vs. Brown 1 the court reviews the cases
of Yancy vs. Batte and Johnson vs. Harrison, pre-
viously noted herein, concurring in some of the views
expressed in Chief Justice Moore's dissenting opin-
ion in the former case. The facts in the Edwards
case were that in 1845 a married man obtained a
patent to land in his own name, as assignee of the
certificate under which it was located. The wife ob-
tained a divorce in 1862, but neither claimed nor had
set apart to her any property. The husband died,
leaving a second wife, to whom he devised the land.
The second wife sold the land to one who was ignor-
ant of the fact that the husband had ever before been
married, and who, upon examination of the records,
found a title down to the vendor, perfect on its face.
In holding that the purchaser acquired title as
against the community interest of the divorced wife,
the court, in an opinion rendered by Justice Gaines,
says :

"It is well settled law in this State that the inter-
est of the husband and wife in the community prop-
erty are equal whether the deed be taken in the name
of either or both. . . . And there are decisions
of courts in which the title of the wife or of her
heirs in the common estate held in the name of the
husband is denominated the legal title. . . . But,
as we take it, by this must be meant that the wife
or the heirs have a beneficial title in fee simple,
which, save as to the husband's power of manage-
ment and disposition during her life, and power to
sell for payment of community debts after her death,

168 Texas, 329.

The Supreme Court of Texas 179

is in no degree subordinate or inferior to his right.
The legal title is in him, or the heirs of him who is
the grantee on the face of the conveyance, although
another, such, for example, as wife or partner, may
have an equal interest in the property conveyed.

"But it may be further remarked that it does not
follow that because one may have the legal title, an-
other may not acquire a superior equity as a bona
fide purchaser. The holder of the legal estate, by
an unrecorded deed, cannot prevail over a purchaser
from his grantor, who has paid value without no-
tice of the unrecorded conveyance. . . .

"If a vendee is to be required to inquire into his
vendor's family history in order to ascertain whether
the property was community or not, why should he
not be held to inquire into his business history and
thus be affected with notice of secret trusts on behalf
of partners or other third parties 1 . . . We have
endeavored to show that the legal title to the land
in controversy in this suit was in E. W. Brown at
the time of his- death, though appellee, as his di-
vorced wife, had an equal beneficial interest in the
property. . . . But we do not wish to be under-
stood as holding that it was necesary that this should
be done in order to uphold the decisions in this case.
The policy of our laws is to protect purchasers
against secret titles, whether they be legal or equi-
table; and justice demands that this be done in the
one case as well as the other. In fact, our registra-
tion acts protect innocent purchasers as fully against
the legal title as against an equitable claim. . . .
Judge Storey, after stating that it had been held by
tribunals of high authority that a plea of bona fide

180 The Supreme Court or Texas

purchaser would not prevail against a suit in equity
for dower — that being a legal estate — says: 'Other
learned minds have, however, arrived at a different
conclusion, and have insisted that, upon principle,
the plea of a purchaser for a valuable consideration
without notice, is a good plea in all cases against a
legal as well as against an equitable claim, and that
dower constitutes no just exception to the doctrine.
They put themselves upon the general principle of
conscience and equity, upon which such a plea must
always stand; that such purchaser has an equal
right to protection and support as any other claim-
ant, and that he has the right to say, that having
bona fide and honestly paid his money, no person
has a right to require him to discover any facts
which shall show an infirmity in his title. The gen-
eral correctness of the doctrine cannot be doubted,
and the only recognized exception seems to be that
of dower, if that can be deemed a fixed exception.' 1

"Upon the general principles of conscience and
equity, to which this learned jurist appeals, we see
no good reason why the purchaser in this case should
not be protected, although the title of the appellee
should be a legal and not merely an equitable one.
The distinction between the legal and the equitable
title, as applied to this class of cases, is shadowy
and arbitrary, and ought not to be recognized under
our blended system and the general policy of our
registration laws."

In Price vs. Supreme Lodge Knights of Honor 2
the court held that the mere payment of premiums

^Storey's Equity Jurisprudence, Sec. 631.
268 Texas, 361.

The Supreme Court or Texas 181

on a benefit certificate of another was insufficient
to create an insurable interest in the life of the hold-
er of the certificate, thus discouraging what was then
known as "graveyard insurance," which gave prom-
ise at one time of becoming a popular and profitable
industry. The suit was instituted by Price, who al-
leged that he was entitled to recover the amount due
on a benefit certificate issued to one Thomas C.
Harper, who died a member of the order of the
Supreme Lodge of the Knights of Honor ; that Har-
per, by becoming a member of the lodge, had his
life insured for $2000, payable to his wife and chil-
dren, beneficiaries named by him; that it was neces-
sary for Harper to pay certain dues from time to
time to keep the certificate in force ; that he failed to
pay such dues, became subject to suspension from
the lodge, was about to be suspended, and his certifi-
cate forfeited, when he applied to plaintiff, with
whom he entered into a verbal agreement specify-
ing that if plaintiff would pay the indebtedness of
Harper to the lodge for past dues and assessments,
he, Harper, would transfer the certificate to plain-
tiff; that in pursuance of the agreement plaintiff
paid said indebtedness and kept the certificate alive
until the death of Harper. General and special ex-
ceptions being sustained to the petition, plaintiff
declined to amend, and the ease was dismissed by
the trial court, from which ruling plaintiff appealed.
"It is almost universally conceded," says Chief
Justice Willie, "that policies procured by persons
having no interest in the life of the insured are void
at common law as against public policy. The policy
holder has nothing to lose for which he can claim

182 The Stjpkeme Cotjkt or Texas

indemnity; on the contrary, his interest is an the
early death of the insured; when that occurs, he
ceases to pay premiums, and receives the amount of
the policy. This creates a temptation to destroy
human life, and the common law forbids the con-
tract. These are the grounds upon which such pol-
icies are held to be void. Are they applicable to
a case where the policy is first taken out by the per-
son whose life is insured, and then transferred by
him to one who has no interest in his life? It is
pretty generally held that if a person effects insur-
ance upon his own life, and, in pursuance of a pre-
vious agreement, immediately and without consid-
eration, transfers the policy to one who has no in-
terest in his life, but who agrees to pay the premiums
upon the policy, it will be void. . . . And it has
been held by the Supreme Court of the United States
that a transfer would not be enforced under such
circumstances though the insured were indebted to
the assignee in a small sum disproportionate to the
amount of insurance on his life ; but the policy would
be deemed a security for the debt, and such advances
as might afterwards be made on account of it. . . .
We think those decisions which hold the assignment
invalid are based upon the more satisfactory reason-
ing. When the policy is transferred it becomes the
property of the assignee. ... He becomes the
holder of a policy upon the life of a person
whose early death will bring Trim pecuniary advan-
tage. The temptation to bring about this death pre-
sents itself as strongly to him as to a party who
originally effects insurance for his own benefit upon
the life of another. Public policy removes the temp-

The Supreme Court of Texas 183

tation to take human life, and it cannot matter how
that temptation is brought about. If by reason of a
contract between two persons one is tempted by
pecuniary interest to destroy the other, the form of
the contract is of no importance in testing its valid-
ity. . . . Here we have a mere verbal agreement
between Harper and the appellant that the latter
should pay the dues and assessments — in other words,
the premiums due and to fall due upon the former's
life policy — in consideration of receiving, at Har-
per's death, the money due on the policy. It was but
little better, if anything, than a parol gift of the
certificate by which the assignee was subrogated to
all rights of the assignor in the certificate. In fact,
it was no more than an agreement to convey which
was never executed. Whilst such an agreement
might be enforced in a court of equity, when made
for a valuable consideration and a lawful purpose,
it would have but little standing in such court if
made for the purpose of giving the assignee an in-
terest in the death of the assured."

On March 3, 1888, Chief Justice Willie resigned,
and John W. Stayton was appointed his successor;
A. S. Walker being appointed Associate Justice to
fill the vacancy caused by the promotion of Justice
Stayton.

Alexander S. Walker was born in Rockbridge
County, Virginia, on August 18, 1826. He gradu-
ated from Hanover College, Indiana, in 1850, receiv-
ing the degree of Master of Arts from that institu-
tion in 1854. In 1852 he removed to Texas, locating
at Mannayunk, in Harris County, where he was
employed as a school teacher, and while thus en-

184 The Supreme Court of Texas

gaged, read law under David G. Burnet and J.
Pinckney Henderson. In 1853 he was admitted to
the bar at Houston, and in July of that year lo-
cated at Georgetown, Texas, where he received the
appointment of District Clerk from Judge R. E.
Baylor. In 1854 he began the practice of law, and
in 1858 was elected District Attorney for the Seven-
teenth District. In 1862, while serving in the Con-
federate army, he was elected District Judge of that
district, which position he held until 1865, when he
was removed by the Federal military authorities as
an "impediment to reconstruction." While residing
at Georgetown he was associated in the practice of
law with A. J. Strickland, Richard Sansom, and A.
H. Chalmers. In 1865 Judge Walker located at Aus-
tin, forming a partnership with H. M. Bowers, and
at the death of the latter, associated himself in the
practice with Judge A. W. Terrell, under the firm
name of Terrell & Walker. The members of this
firm were appointed Reporters for the Supreme
Court. In 1879 he was appointed a member of the
Commission of Appeals by Governor O. M. Roberts.
In 1880 Judge Walker was elected Judge of the Six-
teenth Judicial District, composed of Travis County.
In June, 1889, he was apointed Reporter of the Su-
preme Court.

Judge Walker was another distinguished jurist
whose appointment reflected credit upon that pre-em-
inent judge "of judicial talent — Governor O. M. Rob-
erts. Judge Walker's record as District Judge, As-
sociate Justice of the Supreme Court, and official re-
porter of the decisions of that tribunal, disclose his

The Supreme Court of Texas 185

professional learning, judicial acumen, and superior
executive ability.

Associate Justice Walker retired from the court
at the expiration of his term, and was succeeded by
John L. Henry, elected Associate Justice at the en-
suing election, and who assumed his duties January
1, 1889.

John L. Henry was born in Culpepper County,
Virginia, October 18, 1831. When he was five years
old his parents removed to Murf reesboro, Tennessee,
where he was reared to manhood. After completing
his education in Union University, he removed to
Texas in 1852, locating at Huntsville, Texas, where
he read law in 1854-55, and was admitted to the bar
in the latter year. In 1856 he removed to Living-
ston, and, in 1860, was elected District Attorney of
the then Thirteenth District. He enlisted in the
Confederate army in 1862, serving in McCardell's
company, Elmo's regiment, in Texas coast defense
service, until the close of the Civil War. In 1869 he
removed to Tyler, and was shortly thereafter elected
State Senator to the Thirteenth Legislature. He
was a member of the Constitutional Convention of
1875. In copartnership with Stockton P. Donley he
successfully engaged in practising law at Tyler until
the former's death in 1879, when he removed to Dal-
las, Texas, and formed a partnership with W. W.
Leake.

Justice Henry's five years' service on the Supreme
Court demonstrated his professional learning, while
his numerous able opinions in cases of importance
are enduring tributes to his judicial accumen, and
painstaking research in the thorough investigation

186 The Supreme Court of Texas

of precedents bearing upon the points involved in
the decisions of causes in which he participated.

In Chdff Colorado & Samta Fe Railway Company
vs. State 1 it was held that the State could not control
a combination of railroad companies, not chartered
by the State, to fix freight rates on commodities
transported between this State and other States;
but that where two or more of such railroads char-
tered by the State are competing parallel lines, and
they combine with others not subject to State control,
for a purpose condemned by the Constitution, such
combination is unlawful and its existence may be
enjoined.

"This suit was brought," says Justice Gaines, "in
the name of the State by her Attorney General to
restrain certain railroad companies engaged in op-
erating lines within the State from carrying out an
agreement entered into by them in which they com-
mitted to a body of representatives of the companies
the power to fix rates for which freight should be
carried to or from points within the State. The
theory of the State's case is that the parties to the
agreement are parallel and competing lines, and that
the association formed by it is prohibited by Section
5 of Article 10 of the Constitution, which provides
that 'no railroad ... or manager of any rail-
road corporation shall consolidate the stock, prop-
erty, or franchises of such corporation . . . with
or any way control any corporation owning or hav-
ing under its control a parallel or competing line.'

"We think it apparent that the leading object

177 Texas, 366.

The Supreme Court or Texas 187

if not the sole object of the association is by the
appointment of a common governing committee to
fix rates of transportation so as to prevent competi-
tion among the several parties to the contract. We
think it is also apparent from the language of the
section of the State Constitution that its leading ob-
ject was to prevent competing lines of railroads in
the State from so fettering by consolidation, lease, or
other agreement by which one should in any way
subject itself to the control of another so as to stifle
competition for the traffic of the State. . . . We
understand the agreement to embrace both commerce
within the State and between this State and other
States. The former might be enjoined if the latter
could not. We are inclined to the opinion that if
none of the corporations composing the association
owed their existence to our laws that the State would
have no power to prohibit or interfere with a con-
tract of this character in so far as it regulated
charges upon freight carried to and fro between this
and other States. . . . But we think we have
here a very different question. Several of the de-
fendant corporations are chartered under the laws
of this State. . . . If we are correct in our con-
clusion we think it follows that the defendant corpo-
rations who derive their charters from this State are
acting in violation of law in entering into this con-
tract of association, some members of the association
being competing lines of road. We think that the
association being illegal as to some of the defendants
is illegal as to all. It may be that should the com-
panies which have their charters from the United
States or from other States come into this State and

188 The Supbeme Cotjkt or Texas

enter into a similar agreement among themselves
the State would be powerless to interfere because of
its being a matter within the exclusive jurisdiction
of the Uhiited States. Their contract might not be
a violation of our laws because we could make no
laws interfering with interstate commerce. But it
does not follow that they would enjoy immunity in
entering into contracts with our own corporations
which are prohibited to the latter, and thus enable
them to set at naught the limitations upon their
powers. There are certainly many things the State
may do in the exercise of its police powers which
may affect commerce between the States or between
this State and foreign countries; but how far the
police power of the State may extend so far as it
affects the question before us we need not inquire."

While the legal professional is aware of the some-
what paradoxical circumstance that county judges
in Texas are not required to know the law, and also
that some persons holding that office are present
illustrations of the fact that they do not, the general
reader no doubt will be interested in the case of
Little vs. State, 1 in which it is held that a knowledge
of the law is not a necessary qualification of county
judges under our law.

"During the progress of the trial," says Justice
Gaines, "while the relator was being examined as a
witness, counsel for respondent asked him certain
questions with a view to determine whether or not
he was well informed in the laws of the State. They
were such as would have been proper to ask an ap-

175 Texas, 616.

The Supreme Court of Texas 189

plicant for license to practise law. Upon objections
being made the court refused to require the questions
to be answered. Section 15, Article 5, of the Con-
stitution provides that 'there shall be established
in each county in this State a County Court, which
shall be a court of record, and there shall be elected
in each county by the qualified voters a county judge,
who shall be well informed in the laws of the State, '
etc., it may be, too, that if relator at the time of the
election was disqualified to hold the office respond-
ent was elected, although the former received a ma-
jority of the votes. Nevertheless, we are of opinion
that it was never intended to fix a ground of dis-
qualification to hold office by terms so indefinite as
the phrase, 'well informed in the law.' It is appar^
ent that county judges were not required to be law-
yers, because that qualification is expressly provided
by the Constitution for judges of the higher courts.
In this State more than half the county judges who
have been elected since the Constitution was adopted
have been persons who have never devoted a day
to the study of the law, and probably there have
been more lawyers elected to the position than was
expected when the Constitution was framed. . . .
If it had been intended to inquire into the extent of
the legal learning of a county judge in order to de-
termine his qualifications to hold the office, it would
seem some examining board or committee would
have been provided to decide the question. It
was certainly never contemplated that a jury should
determine an aspirant's qualifications upon listening
to his examination on questions of law. We think
the requirement that the county judge should be well

190 The Supreme Court of Texas

informed in the law was intended as a direction to
the voters, and that a majority of the ballots settles
the question."

The omission from the Constitution of any definite
requirement that county judges should be lawyers
has resulted in criticism from persons who believe
that a court of even limited jurisdiction should be
presided over by a judge capable of administering
the law intelligently and of safeguarding the rights
of litigants compelled to obey its judgments.

In State 1 vs. Galveston, Harrisburg & San Antonio
Railway there is interesting data relating to the
disposition of the public domain, together with an
able discussion of legislation touching the State land
grants in aid of the construction of railroads. In
1878 appellant located forty land certificates granted
to it by the State, upon public lands in Crockett
County, Texas. The certificates were for 640 acres
each, and at the same time the company surveyed
alternate sections for the State, as required by the
law governing such locations. After patents had
issued to the company for its forty sections, the
State instituted suit for the recovery of one-half of
the forty sections, contending that the Constitution
of 1876 unconditionally appropriated to the public
free schools an undivided one-half of the unappro-
priated public domain within the State at the time
said Constitution was adopted, in addition to such
alternate surveys as should thereafter be reserved
from grants to corporations. Appellee contended
that the expression "public domain of the State,"

177 Texas, 367.

The Supreme Court of Texas 191

as used in the Constitution was not meant to embrace
lands thereafter taken up under the law granting
lands to railroads.

The court below, in rendering judgment for the
railroad company, filed conclusions of fact, based
upon an agreed statement of facts containing inter-
esting data concerning the amount and disposition
made of the public domain from the adoption of the
Constitution of 1876 to the date of the location of
the lands in controversy in the suit. According to
the court's findings the unappropriated public do-
main of the State on April 18, 1876, amounted, in
acres, to 71,961,277. That since that date there
had been surveyed by virtue of certificates and scrip
54,713,741 acres ; under pre-emption claims 1,638,688
acres; for the University under grants made by
the Constitution, 1,000,000 acres ; for the University
under the Act of April 10, 1883, 1,000,000 acres; sur-
veyed and set apart for the building of the State Cap-
itol, 3,050,000 acres; sold under the Act of July 14,
1879, 8,043,127 acres; set apart for counties, as
school lands, under Acts of March 26, 1881, and
April 7, 1883, and other prior laws, 1,515,721 acres ;
surveyed for the common school fund, under act of
April 10, 1883, 1,000,000 acres; total surveyed for all
purposes since the adoption of the Constitution of
1876, 71,961,277 acres. The court found that of the
54,713,741 acres surveyed by virtue of certificates and
scrip, there had been returned for the benefit of the
school fund, in alternate sections, sections surveyed
by virtue of alternate scrip issued to railroad and
other corporations 20,967,199 acres ; under Confeder-
ate land scrip, 3,411,156 acres, of which there were re-

192 The Supreme Cotjrt or Texas

turned for the benefit of the common school fund,
1,705,578 acres; which amounts added to 176,493
acres surveyed and returned in the years 1876, 1877,
and 1878, aggregated the sum of 23,849,270 acres,
which constituted all the lands of said 71,961,277
acres of public domain that were surveyed for the
benefit of the public school fund since the adoption
of the Constitution of 1876. That of said 54,713,741
acres of public domain surveyed by virtue of certifi-
cates and scrip, there were surveyed for the benefit
of railroads and other corporations and (individuals,
30,826,906 acres; and that of the lands that consti-
tuted the unappropriated public domain of the State
immediately before the taking effect of the Consti-
tution of 1876, as much as one-half remained unsur-
veyed on the 17th of December, 1878, after the sec-
tions, part of which were sued for in the action, and
the alternates thereto, had been surveyed by the de-
fendant.

In the opinion rendered by Justice Henry, atten-
tion is called to appellee's insistence that the ex-
pression "one-half the public domain" should be
given all the force the words imply, unrestrained and
unmodified by what precedes them in the same sec-
tion or by what is found in other articles of the
Constitution, while it is also insisted that such clause
of the Constitution is self-acting and had the imme-
diate effect of appropriating to the school fund an
undivided one-half of the then unappropriated pub-
lic domain, not otherwise appropriated by the same
Constitution; the application of which contention
meant that the balance remaining of the 71,961,277
acres then constituting the unappropriated public

The Supebme Court of Texas 193

domain, after deducting 4,000,000 appropriated by
the Constitution for building a new capitol, and to
the University was, by the self-operating force of the
Constitution, appropriated to the school fund. The
court believed that if no land had been surveyed for
railroad or other corporations it could not be con-
tended that the Constitution appropriated more than
one-half the public domain, while if under the Con-
stitution and laws corporations became entitled to
grants of land, and such lands were surveyed, as they
must have been, in alternate sections, under appel-
lee's contention, that fund would also become the
owner of one-half of the other, or railroad alter-
nates, also. In other words, that the logical -se-
quence of the contention was, if none of the public
domain should be acquired by corporations, only
one-half of it was intended to be or was in fact ap-
propriated to the school fund ; while if all of it was
earned by the corporations, then three-fourths of
the whole was appropriated to the school fund.

The court could not see why it was proposed to
adopt such a division, or why, if it was so intended,
language was not used to clearly express it; that if
it had been intended that the fund should have three-
fourths of the public domain, no reason appeared
why the quantity of the appropriation was made
uncertain by its being made to depend upon the
quantity of land earned by corporations. The court
was of the opinion that if it was the purpose to give
the school fund three-fourths,, that the mode of ap-
propriation tended to the defeat of the purpose by
lessening the interest of the' corporations to diminish
the quantity of land earned by them, and that in the

194 The Supreme Court of Texas

same proportion that the corporations took less the
school fund would have done the same thing.

The court was convinced that if it were true that
the Constitution operated of itself to appropriate an
undivided one-half of the entire unappropriated
public domain to the school fund, as it was contended
it did, then it necessarily followed that since its
adoption there has been no unappropriated public
domain; that since then there had been no spot in
Texas upon which a man could set his foot without
placing it on appropriated land. It was unable to as-
sume that the convention and the people in creating
the Constitution intended to accomplish that result;
that it was clear that if they did so intend they also
designed that the location of the public domain
should cease. After an extensive review of the stat-
utes and decisions, the court reversed and rendered
the case in favor of the railroad company.

Chief Justice Stayton dissented from the views
expressed in the majority opinion. In his dissenting
opinion he expressed the view that the magnitude
of the interest involved in the questions decisive of
the case, and the broad divergence of opinion enter-
tained by members of the court, were reasons which
impelled him to express his views of the construction
which should be placed upon those parts of the Con-
stitution on which the decision should rest.

"In construing a Constitution, or any other law,"
says Chief Justice Stayton," the object sought is
the true intention of the lawmaker, which must be
ascertained by the language in which the law is writ-
ten, and in considering this it is always important to
keep in view the object which the lawmaker intended

The Supreme Court of Texas 195

to accomplish through its enactment. The more
intensely the lawmaker may have seemed to have
desired to accomplish the given purpose, the more
weight should be given the language used in a law
looking to that end. "When it is seen that the people
of a great State have persisted throughout the pe-
riod of their Statehood — in prosperity and in adver-
sity, in peace and in war — in the accomplishment of
a purpose which they have declared again and again
of the utmost importance to their welfare if not to
their existence, when from time to time, as occasion
offered, they have manifested their deep concern to
accomplish it by increasing the fund with which this
may be done, their language used in laws looking to
that end ought not to be lightly weighed.

"The first section of the article of the Constitution
on which the decision of this case rests declares that
'A general diffusion of knowledge being essential to
the preservation of the liberties and rights of the
people, it shall be the duty of the Legislature of the
State to establish and make suitable provision for
the support and maintenance of an efficient system
of public free schools.'

"This utterance is not new to the people of Texas.
Before it became a separate nationality, in the face
of an hostile army bent on subjugation, when the
future was dark, the fathers of the Republic, in sum-
ming up the wrongs which drove them to seek
refuge from oppression through revolution, declared
that the Mexican nation 'had failed to establish any
public system of education, although possessed of
almost boundless resources (the public domain), and
although it is an axiom in political science that un-

196 The Supreme Court of Texas

less a people are educated and enlightened it is idle
to expect the continuance of civil liberty or the ca-
pacity for self-government.'

"The same men, in the Constitution then made,
declared that 'it shall be the duty of Congress, as
soon as circumstances will permit, to provide by law
a general system of education. . . . When it
surrendered its nationality and entered the Union it
preserved the fund now in question, and in the Con-
stitution of 1845 first used the language found in the
present Constitution before quoted. That Constitu-
tion preserved to the school fund all that had been
donated by the Congress of the Republic, imposed
upon the Legislature the duty 'as early as practi-
cable to establish free schools throughout the State,'
and 'to set apart not less than one-third of the an-
nual revenues of the State derivable from taxation
as a perpetual fund.' It made other provisions in
lands. The accumulation of that fund and the
sources from which it came may be traced through
the legislation of the period. Again came devasta-
ting war, but the purpose was never abandoned ; the
fund though for a time partially diverted was re-
stored."

Following an extensive review of the statutes
and provisions of the Constitution bearing upon
the questions involved in the case, Chief Justice
Stayton expresses his conviction that it was not to
be supposed that the people who ratified the Con-
stitution looked to any dark or abstruse meaning
in the words employed by it, but rather that they
accepted them in the sense most obvious to their
common understanding in the belief that that was

The Supkeme Court op Texas 197

the sense designed to be conveyed; that courts are
not at liberty to speculate as to what the people
would have done under any given state of facts
when called upon to construe a constitution, but are
bound to ascertain what they did — what they in-
tended to do — and this from the language used in
making known their intentions. In the absence of
any claim of conflict between the several sections of
the Constitution relating to the questions involved,
he conceived it to be the duty of the court to give
effect to all of them; and that the school fund was
not only the owner of one-half the public domain
given to it by Section 2, Article 7, of the Constitu-
tion, but also and in addition thereto, one-half of
the corporations' alternate surveys. Calling at-
tention to the circumstance that there was a defic-
iency in the amount of land due the school fund,
of 16,592,267 acres, he believed that it could not
be restored in a manner so equitable as by the en-
forcement of the spirit of the Constitution by com-
pelling every person or corporation who has received
two acres of land when entitled to receive one, to
restore one.

It is interesting to note that the attorney general's
argument of the State's motion for rehearing of the
case, disclosed that 5,000,000 acres of land were
involved in this decision.

April 8, 1891, the Legislature increased the num-
ber of judges of the Commission of Appeals from
three to six, dividing the court into two sections of
three commissioners each, designated as sections A
and B, respectively.

198 The Supreme Court of Texas

Ewing et al. vs. The State of Texas ex rel Pollard
et al, 1 involved the power of the city of Oak Cliff,
covering about two square miles, to embrace within
its corporate limits ten square miles, composed of
farms and unoccupied lands. The court in an opin-
ion rendered by Justice Gaines, expressed itself
as authorized by the facts found by the trial court,
to assume that the limits of the attempted incorpora-
tion embraced about ten square miles, while the city
proper covered two square miles; and that while it
was true the proposed incorporation embraced the
village of West Dallas, a suburb of the thriving
city whose name it had in part adopted, there was a
mile of uninhabited territory between the outskirts
of that village and the city of Oak Cliff, the facts
were sufficient to bring the case within the principles
announced in the case of State vs. Edison, 2 in which
the court held that the statute authorizing towns and
villages to incorporate for school purposes only did
not authorize them to include within their limits
adjacent territory inhabited solely by a rural popu-
lation. In the court's opinion, a stronger reason ex-
isted for not permitting them to embrace in the cor-
poration territory not inhabited at all. The corpora-
tion in the instance case having been attempted
under the statute authorizing towns or cities of 1000
inhabitants to incorporate, it followed that the man-
ner of incorporating towns and villages for school
purposes, and for incorporating cities, towns, and
villages for municipal purposes was precisely the

181 Texas, 173.
276 Texas, 303.

The Supreme Court of Texas 199

same; and that the same rule as to the extent and
nature of the territory sought to be included in the
corporation, was applicable to both, in the matter of
restricting the same to their actual boundaries. The
court denied the contention that the boundaries of a
corporation was a question to be determined by the
Legislature, and not by the courts, because no power
had been granted the Legislature to authorize the
incorporation to embrace territory beyond the actual
limits of cities and towns. "A city," said the court,
"does not extend beyond the area occupied by its
houses and inhabitants. For the same reason the
fact that much of the territory lying beyond the
actual city has been laid off into blocks and lots as
prospective additions does not aid respondents'
case."

After the annullment of the attempted incorpora-
tion of Oak Cliff by the decision above noted, the
officers of that city applied to the Commissioners'
Court of Dallas County to take possession of certain
property of the defunct city and apply it to the
payment of their salaries and arrears, and upon the
refusal of the commissioners to comply with that
request, sought to compel such action by mandamus.
A demurrer being sustained to the petition seek-
ing that relief, applicants appealed. In sustain-
ing the ruling of the court below, the Supreme
Court, in Ewing vs. The Commissioners' Court of
Dallas County, 1 held that there never existed any
indebtedness for which the inhabitants of the terri-
tory sought to be incorporated into a city, were

183 Texas, 663.

200 The Supreme Court of Texas

bound ; and that it seemed that the Legislature would
not have power to authorize the levy of a tax upon
the inhabitants to meet the liabilities incurred by
an illegal attempt at municipal government.

In the case of State vs. Loan and Trust Company, 1
the Farmers' Loan and Trust Company, as plain-
tiff, brought suit against the International & Great
Northern Railway Company as defendant, to re-
cover $10,348,000 due upon certain second mortgage
bonds, alleged to have been issued and sold by said
company and applied to the construction and opera-
tion of its road, and to foreclose a certain second
mortgage upon all the property and franchises of
said company, alleged to have been executed to plain-
tiff as trustee to secure the payment of the bonds.
Plaintiff asked the appointment of receiver to take
charge of and operate the mortgaged property
under direction of the court during the pendency of
the suit ; for judgment for the amount sued for, and
for foreclosure and sale of the property in satisfac-
tion of its judgment. The State intervened, chal-
lenging the validity of the mortgage and bonds sued
on; prayed for their cancellation; that the owners
be prohibited from negotiating them; that the cor-
poration and its receivers be restrained from paying
them; and for general relief. After the overruling
of plaintiff's exceptions to the State's plea of inter-
vention, plaintiff moved the court to take a non-
suit, which the court sustained over the objections
of the State.

The court in an opinion by Chief Justice Stayton,

181 Texas, 530.

The Supreme Court of Texas 201

in discussing the duties and powers conferred upon
the Attorney-General by the Constitution, says that
his duty to inquire into the charter rights of private
corporations was to the end that when in his opinion,
based upon inquiry, it became necessary to take
steps to prevent the abuse of corporate power he
might do so, but that final inquiry in all cases must
be made in and through all courts as to whether in
a given case the corporation had exercised a power
not given by its charter or the laws of the State
which would authorize the State to sue to prevent
an injury to the public; that the Constitution made
it the duty of the Attorney-General to take such
action in the courts as might be proper and necessary
to prevent any corporation from demanding any
species of taxes, tolls, freight or wharfage not
authorized by law, and that as to such matters it
was not only the right but the duty of the Attorney-
General to institute and maintain in behalf of the
State such suits as might be necessary to prevent
abuse of its franchise by any private corporation;
but that even in such cases it rested with the courts
in which such actions were brought to determine
whether the petition of the State showed a cause of
action entitling it to preventative or restraining
process against the corporation in a given case.

As ground for its intervention the State alleged,
among other things, that it had made a large dona-
tion of lands to the defendant company, exceeding,
with exemptions from taxation, the value of the
properties of the company, for the purpose and on
condition that the company would maintain low
rates of freight charges upon traffic, which it could

202 The Supreme Court of Texas

not do if its bonds were foreclosed and its property
sold as prayed for by the Farmers' Loan and Trust
Company; and that if the decree asked by the trust
company should be granted, the said railway com-
pany would be forced to raise charges for traffic over
its line, thereby imposing an extra burden upon the
commerce of the country.

The court recognized the universally accepted rule,
that to entitle a person or a corporation to maintain
an action it must be shown that the one instituting
the suit has an interest in the subject matter of liti-
gation either in his own right or in a representative
capacity, and that a State was not exempt from this
rule, though it ought to be conceded that such repre-
sentative character could be established by a positive
law when the relation would not be held to exist in its
absence. Without intimating in its opinion the
validity or invalidity of the bonds or of the mort-
gage intended to secure them, the court was of the
opinion that the facts alleged in the State's petition
were insufficient to entitle the State to the relief
sought because by the sale of the railway and the
franchises of the corporation, all debts not secured
by mortgage giving prior lien to that held by the
trust company as trustee would be extinguished, in
so far as they could effect the title of the purchaser,
or his right to operate the railway at such rates as
under the law he might fix. Conceding that the court
had retained jurisdiction of the case and granted
the relief asked by the State, the court was unable
to see that the public would have been benefited,
seeing that the trial court could not have legally
made or enforced an order requiring the company,

The Stjpkeme Court of Texas 203

after the cancellation of the bonds alleged to be
invalid, to transport freight or passengers at a
rate lower than the maximums fixed by law. The
court did not believe that it was the purpose of the
Constitution to confer upon the Attorney-General
the power to institute and maintain an equitable
proceeding such as this in every case in which a
corporation exercised a power not conferred by law,
without reference to the question of whether the ex-
ercise of such power is hurtful to some interest
essentially public. It believed it to be the right of
the Attorney-General in behalf of the State, through
the courts, to prevent any corporation from exercis-
ing any power not conferred by law when this is
hurtful to the public, or the assumption of a fran-
chise which in itself was a public wrong. The court
said that the corporate acts in this case claimed to
have been committed without authorization of law,
were the issuance of bonds and execution of the
mortgage made the basis of plaintiff's action, which
occurred in 1881, and that it is now alleged, not that
the corporation proposes to do any act in excess of
its powers, but that it refused to make necessary
defenses and intended to permit the court to render
judgment against it that ought not to be rendered;
that admitting such to be true, it might violate its
duty to its stockholders and fail in its duty to the
State to preserve its funds that might be necessary
to the discharge of its duties to the public, but that
such would not be the exercise of a power not con-
ferred by law, but a failure to exercise a proper and
necessary power, not presenting a case within the

204 The Supeeme Court or Texas

letter or spirit of the Constitution entitling the State
to a preventative remedy.

In Can-field vs. Gresham et al., 1 the court held that
under the provisions of Article 3, Sections 15 and 21
of the Constitution, the House of Representatives of
the Texas Legislature had the right to determine
whether or not the acts of a person were such as to
be classed as an obstruction to its proceedings; and
that having so determined to cause him to be im-
prisoned for contempt, such imprisonment gave no
right of action against the members of the Legisla-
ture, nor the sergeant-at-arms who executed the
order.

The action was instituted by H. S. Canfield against
fifty-six members of the House of Representatives
of the Twentieth Legislature, and J. C. Carr, its
sergeant-at-arms, to recover damages for his alleged
unlawful and malicious arrest and imprisonment.

As justifying their action the defendants, among
other defenses, alleged:

"That early in the session, and because of the
interest of the public in the proceedings of said
House of Representatives, and in order that said
proceedings might be more fully and accurately re-
ported for transmission to the various newspapers
publishing the same, a table for writing and other
conveniences was provided in said House of Repre-
sentatives, within the bar of said House, and to the
representatives of journals of the State was ex-
tended the privilege of seats at said table. . . .
That . . . plaintiff was reporter or correspond-

182 Texas, 228.

The Supreme Court or Texas 205

ent for a newspaper published in San Antonio,
Texas, and on that account, and for the purposes
aforesaid . . . was permitted to sit at said table.
. . . That said Canfield did not appreciate the
courtesy shown him or the facilities afforded the
newspaper he represented; that the said Canfield
at once devoted himself to misrepresenting the ac-
tion of the Legislature, and instead of confining
himself to correct and true reports and legitimate
and accurate statements in his correspondence, the
said Canfield proceeded to fabricate and transmit
. . . for publication ... a series of sensa-
tional, false, defamatory, and slanderous letters, re-
lating not to any matter affecting the public wel-
fare or concerning the official proceedings of said
House of Representatives, but to the personal ap-
pearance of, manners and habits of certain in-
dividual members of said House; said letters being
calculated to, and of such a nature and so designed
as to bring into public odium, infamy, ridicule, and
contempt the said House of Representatives and the
individual members thereof.

"That on account of the purpose and conduct of
the said Canfield in the matter of the correspondence
above referred to, which was a breach of the priv-
ilege of said House, and a high contempt of the
dignity of the chosen representatives of the people,
a resolution was offered and duly passed . . .
which expelled the said Canfield from and denied
him admission to and the privilege of the hall within
which the said House of Representatives was holding
its session. . . .

"That the said Canfield was present in the House

206 The Supreme Court of Texas

of Representatives when said resolution was passed,
and had full knowledge thereof and its contents.
That afterwards . . . the said resolution still
being in force, and the House of Representatives be-
ing in session with open doors, through which the
said Canfield could both hear and see if he so de-
sired, the said Canfield, notwithstanding said reso-
lution and said rules 49 and 50, and the said Can-
field not coming within the exemptions mentioned in
said rules, and notwithstanding the further fact that
the hall in which the session was being held was
under the control of the House of Representatives,
demanded to enter said hall where the House of
Representative was then in session, and against the
wishes and over the objections of the Assistant
Sergeant-at-Arms, . . » he, the said iCanfield
did, forcibly intrude himself into said hall, . . .
and was removed by said Assistant Sergeant-at
Arms.

"That the said Canfield . . . for the purpose
of obstructing the proceedings of said House, and
contrary to truth, did appear at the office of a justice
of the peace . . . and make oath to a written
complaint, which charges as follows : . . . 'That
he has good reason to believe, and does believe and
charge that George C. Pendleton and Mont-
gomery whose other name ... is unknown to
affiant, did . . . unlawfully and wilfully in and
upon H. S. Canfield make an assault' . . . That
the said Canfield procured a warrant of arrest
. . . and procured the arrest of said Pendleton
... in open contempt of the House of Repre-
sentatives and of its right to transact legislative

The Supreme Court of Texas 207

business for the people free from molestation, and
which, was for the purpose of obstructing the pro-
ceedings of the House; the said Pendleton being at
the time of his arrest a member of said House, as
aforesaid, of the Twentieth Legislature of Texas,
. . . and not subject to arrest, as he had not
committed treason, felony, or breach of the peace.
That on account of the arrest of said Pendleton, pro-
cured ... by the said Canfield, the said Pendle-
ton was forcibly taken away and caused to absent
himself from his official duties as a member of the
House of Eepresentatives and as Speaker thereof,
and was required to attend for trial in answer to
said complaint upon the court of said . . . just-
ice of the peace. . . .

"That by the absence of the said Pendleton, caused
and procured by the said Canfield, . . . the
proceedings of the House of Representatives were
obstructed, business was delayed and a Speaker
pro tern, had to be elected to serve in the place of
the absent Speaker, and a general dissatisfaction
and disturbed state of mind ensued, unfitting the
Representatives for calm and deliberate legislation.
That because of the obstruction of the proceedings
of the House of Representatives ... by the
said Canfield, a resolution was passed by the House
of Representatives . . . substantially as fol-
lows:

" 'Whereas, It has come to the knowledge of
this House that Hon. George C. Pendleton, Speaker
of this House, was today arrested by virtue of a
warrant of arrest issued by Fritz Tegener, justice
of the peace in and for Travis County, Texas, upon

208 The Supreme Court of Texas

the affidavit of H. S. Canfield, charging him, the
said George C. Pendleton, with committing an as-
sault, and that the said George 0. Pendleton is now
detained as aforesaid ; therefore be it

" 'Resolved, That this House refuse to waive the
privilege of the said George C. Pendleton as mem-
ber thereof, and that this House refuse to permit
the said justice of the peace to proceed with the
trial of the said George 0. Pendleton, and that he,
together with the said officer, M. V. Crenshaw, be
instructed and directed to no longer detain the said
Hon. George C. Pendleton, but that he be released
at once, that he may attend upon this House as a
member thereof.

" '2. That the said Fritz Tegener, justice of the
peace, and M. V. Crenshaw, said officer making such
arrest, and the said H. S. Canfield, be required to
appear at the bar of the House at once and answer
why they should not be committed for contempt as
aforesaid ; and that upon their failure to do so that
they be committed to imprisonment for the period
of forty-eight hours to purge themselves of said
contempt.' "

Upon their appearance in response to the resolu-
tion, Tegener and Crenshaw were released from
further attendance, and Canfield was sentenced to
forty-eight hours imprisonment for obstructing the
proceedings of the House of Representatives.

September 22, 1891, the following Constitutional
amendments relating to the Supreme Court were
adopted :

"The Supreme Court shall consist of a chief
justice and two associate justices, any two of whom

The Supreme Court op Texas 209

shall constitute a quorum, and the concurrence of
two judges shall be necessary to the decision of a
case. No person shall be eligible to the office of
chief justice or associate justice of the Supreme
Court unless he be, at the time of his election, a
citizens of the United States and of this State, and
unless he shall have attained the age of thirty
years, and shall have been a practicing lawyer or
a judge of a court, or such lawyer and judge to-
gether, at least seven years. Said chief justice and
associate justices shall be elected by the qualified
voters of the State at a general election, shall hold
their offices for six years or until their successors
are elected and qualified, and shall receive an an-
nual salary of four thousand dollars until other-
wise provided by law. In case of a vacancy in the
office of chief justice of the Supreme Court the
Governor shall fill the vacancy until the next general
election for State officers, and at such general elec-
tion the vacancy for the unexpired term shall be
filled by election by the qualified voters of the
State. The judges of the Supreme Court who may
be in office at the time this amendment takes effect
shall continue in office until the expiration of their
term of office under the present Constitution, and
until their successors are elected and qualified.

"The Supreme Court shall have appellate juris-
diction only, except as herein specified, which shall
be coextensive with the limits of the State. Its
appellate jurisdiction shall extend to questions of
law arising in cases of which the Courts of Civil
Appeals have appellate jurisdiction, under such
restrictions and regulations as the Legislature may

210 The Supreme Court of Texas

prescribe. Until otherwise provided by law the
appellate jurisdiction of the Supreme Court shall
extend to questions of law arising in the cases in
the Courts of Civil Appeals in which the judges of
any Court of Civil Appeals may disagree, or where
the several Courts of Civil Appeals may hold dif-
ferently on the same question of law, or where a
statute of the State is held void. The Supreme
Court and the justices thereof shall have power to
issue writs of habeas corpus as may be prescribed
by law, and under such regulations as may be pre-
scribed by law the said court and the justices thereof
may issue the writs of mandamus, procedendo, cer-
tiorari, and such other writs as may be necessary
to enforce its" jurisdiction. The Legislature may
confer original jurisdiction on the Supreme Court
to issue writs of quo warranto and mandamus in
such cases as may be specified, except as against the
Governor of the State. The Supreme Court shall
also have power, upon affidavit or otherwise, as by
the court may be determined, to ascertain such
matters of fact as may be necessary to the proper
exercise of its jurisdiction. The court shall sit for
the transaction of business from the first Monday in
October of each year until the last Saturday of
June in the next year, inclusive, at the capital of
the State.

"The Supreme Court shall have power to make
and publish rules of procedure, not inconsistent with
the laws of the State, for the government of said
court and the other courts of the State, to expedite
the dispatch of business therein."

The Supreme Court of Texas 211

By an act approved April 13, 1892, 1 it was pro-
vided that justices of the Supreme Court should be
elected by the qualified voters of the State at a gen-
eral election; that the judges of the court then in
office should hold their office until the expiration
of the term for which they were elected, and until
their successors were elected and qualified. It was
provided that as soon as practicable successors of
the then incumbents should be elected and that the
newly elected judges should cast lots for the term
of office ; that the one who should draw number one
should hold his office for two years; the one draw-
ing number two, for four years; the one drawing
number three, for six years; and that each judge. of
the Supreme Court elected thereafter should hold
his office for six years, and should receive an annual
salary of four thousand dollars. It was further pro-
vided that the court should hold one term each
year at the city of Austin, commencing on the first
Monday in October in each year, and may continue
until the last Saturday in the next June. The
Supreme Court was given appellate jurisdiction
co-extensive with the limits of the State, extending to
questions of law arising in all civil cases of which
the courts of civil appeals have appellate but not
final jurisdiction. All cases were required to be
carried up to the Supreme Court by writs of error
issuing from the Supreme Court to the courts of
civil appeals upon final judgment, and not on judg-
ments reversing and remanding causes, except in
the following cases: 1. Where the State is a party

lAct of 22nd Leg., Appendix A, herein.

212 The Supreme Court op Texas

or where the railroad commissioners are parties. 2.
Cases which involve the construction and application
of the Constitution of the United States or of the
State of Texas or an Act of Congress. 3. Cases
which involve the validity of a statute of the State.
4. Cases involving the title to a State office. 5.
Cases in which a court of civil appeals overrules its
own decisions or the decision of another court of
civil appeals or of the Supreme Court. 6. Cases
in which the judges of any court of civil appeals
may disagree. 7. Cases in which any two of the
courts of civil appeals may hold differently on the
same question of law. 8. When the judgment of a
court of- civil appeals reversing a judgment prac-
tically settles the case, and this fact is shown in the
petition for writ of error.

The act provides that parties desiring to sue out
a writ of error before the Supreme Court, shall pre-
sent a petition to the court stating the names and
residences of parties adversely interested, with a
brief statement of the nature of the case and the
ground upon which the writ of error is prayed, and
that it must appear that the errors complained of
arose upon questions of law, the determination of
which were necessary to the decision of the cause
in the court of civil appeals, and that said questions
were properly presented to said court; that it must
further appear that the Supreme Court would have
jurisdicion thereof; and that the petition shall con-
tain such other requisites as may be prescribed by
the Supreme Court. A certified copy of the con-
clusions of law and facts filed in the cause by the
court of civil appeals, with the opinion thereof,

The Stjpkeme Court of Texas 213

together with a certified copy of the judgment in the
trial court and of the bond given in the lower court,
if any, are required to accompany the application;
and if upon inspection of the record it should ap-
pear to the Supreme Court that there is error in
the judgment of the court of civil appeals, it shall
grant a writ of error returnable in thirty days, in
such manner as may be prescribed by said court.

By an act of the same Legislature approved on
the same date, the present system of courts of civil
appeals was created.

Darnell vs. Lyon 1 was among the first cases con-
struing the Constitutional amendments and the act
in pursuance of authority to reform the procedure
of the Supreme Court. Chief Justice Stayton dis-
sented from the views of the majority of the court
holding that the Supreme Court has jurisdic-
tion of questions novel or of first impression
certified to it by the court of civil appeals, in cases
in which it has final jurisdiction. He was con-
vinced that the intention of the Legislature was to
confer upon the Supreme Court jurisdiction of a
question of law found in a case appealed to a court
of civil appeals, although that court had made no
decision on the question, interlocutory or final in
character; and that there could be no doubt that it
was intended to make the decision of the Supreme
Court on the certified question binding on the court
of civil appeals. In the case before the court, he
contended that the Court of Civil Appeals made no
decision of the cause nor of the question certified,

185 Texas, 455.

214 The Supeeme Cotjet of Texas

and hence the question arose whether the Legis-
lature had power to confer such jurisdiction on the
Supreme Court. Citing the provision of the Con-
stitution which declares that "said Court of Civil
Appeals shall have appellate jurisdiction coextensive
with the limits of their respective districts, which
shall extend to all civil cases of which the district
or county courts have original or appellate juris-
diction, under such restrictions and regulations as
may be prescribed by law, he expressed the view
that if, under that clause of the Constitution, the
Legislature had not restricted the jurisdiction of
these courts, they would have had appellate jurisdic-
tion of every civil cause tried in a district or county
court in the exercise of original or appellate jurisdic-
tion, simply because it is conferred by the Constitu-
tion. While that jurisdiction has been somewhat re-
stricted by the Legislature under the power con-
ferred by the Constitution, yet he conceded that the
Court of Civil Appeals has jurisdiction of the cause
in which the questions certified were found. Touch-
ing the character of that jurisdiction, he believed
that it was an exclusive one so long as the cause re-
mained undecided in that court; that such would
follow as there were no other parts of the Consti-
tution bearing upon the question except that quoted ;
for the declaration that the jurisdiction of the
Courts of Civil Appeals "shall extend to all civil
cases," etc., necessarily would make their jurisdic-
tion in the classes of cases referred to exclusive, for
the time, in the absence of some other provision in
the Constitution giving some other court concurrent
or co-ordinate jurisdiction; that when it is said the

The Supreme Court of Texas 215

jurisdiction of these courts is conclusive this
word is used to express a jurisdiction not
concurrent, and it was not contended that
while it is in this sense an exclusive jurisdiction,
that it is a final jurisdiction. Quoting the section of
the Constitution which provides that "The Supreme
Court shall have appellate jurisdiction only, except
as herein specified, which shall be coextensive with
the limits of the State," and that "its appellate
jurisdiction shall extend to questions of law arising
in cases of which the Courts of Civil Appeals have
appellate jurisdiction, under such restrictions and
regulations as the Legislature may prescribe," he
contended that the Constitution as quoted shows that
the jurisdiction to be exercised by the Supreme
Court is an exclusive and final jurisdiction, under
such restrictions as the Legislature might make ; that
it is appellate only, and that it extends only to
questions of law arising in cases of which the
Court of Civil Appeals have appellate jurisdiction;
while under another clause of the Constitution it is
declared "that the decisions of said courts (Courts
of Civil Appeals) shall be conclusive on all ques-
tions of fact brought before them on appeal or
error."

He did not believe that it was the intention of the
framers of the Constitution that the Courts of Civil
Appeals and the Supreme Court should have juris-
diction concurrent in nature in any case, but to
clothe the Supreme Court with power, in the exer-
cise of its appellate jurisdiction as conferred, only
to decide questions of law that had been passed upon
by the Court of Civil Appeals, or that arise in a

216 The Supreme Court of Texas

case decided by one of those courts. He believed
that appellate jurisdiction was given the Courts of
Civil Appeals that they might exercise it, and not
that they might surrender it by referring a cause,
or a question in a cause, which they ought to decide,
for the decision of the Supreme Court, which would
be but another method of giving it jurisdiction of
cases over which the Constitution declares the Court
of Civil Apeals should have jurisdiction.

'Was it ever contemplated," inquired Justice
Stayton, "that in any case a Court of Civil Appeals
should decide the facts of a cause and not the law?"
He did not conceive that such was the intention,
because it would not be the exercise of the jurisdic-
tion conferred by the Constitution — not really the
exercise of any jurisdiction at all nor the
hearing or determination of any right; that
in cases to which that belongs from which
the questions were certified, the Constitution pro-
vided that they should "be certified to and the
records thereof transmitted to the proper Court of
Civil Appeals, to be decided by said courts;" that
they were required to be sent to Courts of Civil
Appeals, to be decided by them, and not that they
might send them, in whole or in part, to the Supreme
Court for determination in the first instance.

"It can not," Justice Stayton continues, "with
plausibility, be contended that this court has and
may exercise appellate jurisdiction in any case
pending before a Court of Civil Appeals in which
there is a question of law, even if those courts may
consent to or invite the exercise of such jurisdiction ;
for if this were true, this court, without a law,

The Supkeme Court op Texas 217

would have or could acquire jurisdiction over any
case pending before Courts of Civil Appeals; for
there is no cause in which there does not exist a
question of law. It may not be a doubtful or con-
troverted question, but in the nature of things it
must exist, for the application of some rule of law
is necessary to the determination of every right.
Courts have no power to confer upon themselves or
upon other courts any jurisdiction whatever — that
must come through the law. It is equally true that
the Legislature has not power to confer upon this
court appellate jurisdiction over any case pending
in the Courts of Civil Appeals in which there exists
a question of law, prior to a decision of the cause
by the court having jurisdiction over it under the
terms of the Constitution; for the existence of such
a power in the Legislature would give to that de-
partment the power to take from those courts the
jurisdiction conferred upon them by the Constitu-
tion."

In May, 1893, Justice Henry resigned, and Thomas
J. Brown was appointed Associate Justice to fill
the vacancy.

Thomas J. Brown was born in Jasper County,
Virginia, July 24, 1836. His parents removed to
Texas in the winter of 1846-47, locating in "Washing-
ton County. In 1857 he graduated from the law
department of Baylor University, Independence,
Texas, and was admitted to the bar in that year, and,
in 1859, was licensed to practise in the Supreme
Court of Texas. Thereafter he located at McKinney,
Collins County, Texas, where he engaged in practis-
ing law until the outbreak of the Civil War, when

218 The Supreme Court of Texas

he joined the Confederate army, serving as second
lieutenant in E. Robert Taylor's regiment of cavalry,
and was later promoted to the rank of captain. He
served in the army until ill health compelled him to
resign before the close of the war. Returning to
McKinney he formed a law partnership with J. W.
Throckmorton, of which he was a member until
1872, when he removed to Sherman, Grayson County,
Texas. He represented Grayson County in the
Twenty-First and Twenty-Second Legislatures with
distinction. His able advocacy of the Railroad Com-
mission Bill in the Twenty-first Legislature gave
him State-wide reputation as one of the ablest
legislators of that period.

He was among the ablest and most efficient of
those leading citizens of Texas who succeeded in
curbing corporate aggression in several directions,
which threatened for a time the supremacy of those
organizations to the detriment of the interests of the
people; an epoch marked by the creation of the
Railroad Commission, and the enactment of drastic
legislation regulating the activities of foreign corpo-
rations in Texas. Several persons connected with cor-
porations in Texas, who were unable to distinguish a
political partisan from a patriot, did not welcome the
appointment of Justice Brown. It is distinctly credit-
able to Justice Brown that these fears were dispelled
by the universal fairness and thorough impartiality
of his decisions in corporation cases, as in all others,
and that within a short time after his assumption of
his duties upon the court, corporation as well as
anti-corporation lawyers, united in their approval

The Supreme Court of Texas 219

of the selection of Justice Brown as the best that
could have been made.

The vigor, strength, simplicity and clearness of
Justice Brown's opinions demonstrate his mental
virility, unerring sense of justice, and rugged man-
hood. He came to the bench in that fullness of
physical and mental vigor and strength, made pos-
sible in age by a simple, clean and upright life. The
pages of the official reports covering the period of
his distinguished labors as a member of the court are
enduring evidences of how ably, faithfully and well
he discharged the responsible duties of his exalted
position. There is reason to believe that, like
more than one of his distinguished predecessors, his
health and life were sacrificed to his conscientious
devotion to the exacting labors of that tribunal,
which it appears the legislative department has been
incapable of understanding or sufficiently appreciat-
ing to lighten those burdens which have sacrificed so
many of our distinguished jurist.

In Queen Insurance Company et al. vs. State, 1 the
Supreme Court in an able opinion by Justice Gaines,
held that a combination between two or more insur-
ance companies to increase their rates of insurance,
or to diminish the rates to be paid to their agents,
was in a general sense a combination in restraint of
trade, but not violative of an anti-trust law inhibit-
ing and punishing combinations 'to create or carry
out restrictions in trade."

The State of Texas by its Attorney-General in-
stituted suit against the "Texas Insurance Club,"

186 Texas, 350.

220 The Supreme Court of Texas

an association of insurance agents, and against
fifty-seven foreign insurance companies doing busi-
ness in Texas under permits granted under the laws
of the State. The Insurance Club was alleged to
have been created with the consent and by the pro-
curement of the other defendants for the purpose
of organizing a combination to fix a uniform rate
of insurance throughout the State upon a graduated
scale, thereby preventing competition among each
other, and at the same time establishing a fixed rate
of commission to be paid to the agents of said com-
panies. It was alleged that the combination, pur-
poses, and acts of the defendants were in restraint of
trade, contrary to public policy, and in viola-
tion of the Texas anti-trust act, and illegal at com-
mon law.

The court expressed the opinion that if it should
be admitted that the language of the statute suf-
ficiently manifests the intention of the Legislature
to make such combinations as are defined therein
unlawful, and to make punishable acts committed in
violation of its provisions, and that it is not in con-
flict with the Constitution by reason of the fact that
it exempts "agricultural products and livestock
while in the hands of the producer or raiser" from
its operation, the question remained whether the
combination charged in the petition is embraced
within the provisions of the law. "We are of the
opinion," says the court, "that the question must
be answered in the negative. To determine that it is
so embraced, we must hold either that it is a restric-
tion on trade within the meaning of the first sub-
division of Section 1, and that those words suf-

The Supreme Court of Texas 221

ficiently define an offense so as to make it punishable
under our laws, or that the contract of insurance is
a commodity such as is named in the other sub-
divisions. A combination of two or more insurance
companies to increase their rates or to diminish the
rates to be paid their agents, is in a general sense a
combination in restraint of trade. But we think that
the words 'restrictions in trade' were not intended
to receive that construction in the statute under
consideration. If so intended, it may be gravely
doubted whether under our laws they sufficiently
designate an offense so as to make it punishable."

The court viewed some contracts as contrary to
public policy, and unlawful in the sense that they
would not be enforced by the courts; while others
were lawful and enforceable. As to restraints which
are reasonable, the authorities, says the court, are
not in accord; though the evident tendency of
modern decisions was to uphold such contracts in
doubtful cases; that the rule as to contracts in un-
reasonable restraint of trade had been applied
without a question to very varied employments, such
as attorneys at law and physicians, as well as to
merchants, shopkeepers, carriers, and those engaged
in mechanical pursuits of every character. The rule,
it was believed, was founded both upon the ground
that the public has an interest in the employment,
and upon the further ground that it is contrary to
public policy that any person should wholly deprive
himself of his right to pursue an occupation in which
he is presumably skilled; that while a party might
bind himself for an adequate consideration not to
pursue his avocation within the limits of a prescribed

222 The Supreme Court of Texas

locality, provided the limits should be reasonable,
but he could not bind himself not to follow his trade
in any place whatever.

"Now an agreement between two or more persons,"
says the court, "by which one of them undertakes
to bind himself not to follow his trade or practice a
profession in a territory of prescribed limits, is 'a
combination' within the meaning of the statute
under consideration. A contract between two or
more persons to do a thing is a 'combination of
. . . acts' of such persons to bring about the
performance of the contract. It is upon this theory,
in part, that the charge made in the petition is
based. Now the clause of the act which we are en-
deavoring to construe makes no distinction between
such restraints of trade as are reasonable and such
as are unreasonable. Hence if we should give the
words 'restrictions in trade' their ordinary technical
meaning, it would follow that the act made punish-
able all contracts in restraint of trade, however
reasonable they may be. It would follow, that if one
merchant engaged in the hardware business should
buy out another, such other agreeing not to pursue
the same business on the same block or street or
in the same town for a limited time, both would be
subject to the penalties affixed by the act. It is
probable that the Legislature has the power to make
such a law. But it is unreasonable to presume that
they intended to make it ; and no construction ought
to be given to an act which would lead to such re-
sults, unless its language is so clear an unambiguous
as to admit of no other conclusion."

The court did not wish to be understood as hold-

The Supreme Court of Texas 223

ing that the combination disclosed in this case was
not detrimental to the public, or that sound policy-
did not demand the suppression of that and like
organizations of a similar magnitude. It conceded
that there were certain contracts, and perhaps com-
binations, which the law regarded as being against
public policy, but that the courts could not extend
the rule merely by reason of their opinion as to
what the law ought to be ; that what other combina-
tions or contracts should be held illegal on the
ground of public policy, was a political question —
one which it was the province of the legislative de-
partment of the government to determine; that the
Legislature had power to weigh the public interest
even "in golden scales," and if such combinations
should be found detrimental, they should denounce
the evil and provide the remedy.

Interest attaches to the case of Scott vs. State, 1 as
one of few proceedings in Texas to disbar an at-
torney for professional misconduct. The suit was
instituted in the District Court of Bosque County,
where a judgment was rendered against Scott, for-
feiting his license, disbarring him from practice,
and striking his name from the roll of attorneys.
Prom that judgment he sued out a writ of error to
the Court of Civil Appeals of the Second District,
which held that the case was a criminal proceeding
of which it had no appellate jurisdiction, and dis-
missed the cause. Upon this judgment appellant
was granted a writ of error by the Supreme Court,
which held that the case was a civil proceeding of

186 Texas, 321.

224 The Supreme Court of Texas

which the Court of Civil Appeals had jurisdiction,
and reversed and remanded it to the latter court for
disposition. 1

The opinion of Chief Justice Stayton in Texas &
Pacific Railway Company vs. Gay, 2 is one of the
ablest rendered in the Supreme Court of Texas in
recent years. His masterly review of authorities and
able exposition of the jurisdiction of Federal courts
in railway receiverships, the sources of judicial
power, and the liability of railway corporations for
the acts of illegally appointed receivers, are dis-
tinctly creditable to the professional learning of the
great jurist who formulated the opinion.

The suit was instituted by the wife and minor
child of John M. Gay, to recover from John C.
Brown, as receiver of the Texas & Pacific Railway
damages for an injury received by him while in the
employment of the receiver, which resulted in death.
At the time the suit was brought John C. Brown

iOn submission of the case in the Court of Civil Appeals, Scott,
while arguing the case in his own behalf, was interrupted by a learned
but proverbially inquisitive Justice, who inquired if counsel was aware
that a point he was contending for had been expressly denied in a case
decided by a New York appellate court, to which Scott replied he was.

"Then what have you to say of that case?" the Justice asked.

"Simply this," Scott replied, "it's a decision of one of those half-way
courts, like this, which isn't the law until indorsed by the Supreme
Court!"

The timely intervention of an amaous curiae, who privately advised
the court that Scott was so worried by reflections cast upon his pro-
fessional integrity by the proceedings, that he was hardly responsible
for his utterances, probably was all that saved him from, severe punish-
ment for contempt of court. There is, however, no doubt that the
decision of the Supreme Court in the case measurably sutained Scott's
estimate of the value which sometimes attaches to the decisions of
what he was pleased to call "half-way courts.''

286 Texas, 571.

The Supreme Court of Texas 225

was operating the Texas & Pacific Railway as re-
ceiver under appointment of the Circuit Court of
the United States sitting for the Eastern District of
Louisiana, hut pending the litigation the receiver
was discharged. After the discharge of the receiver,
with pleadings setting up the fact, a judgment was
rendered against him, which was reversed hy the
Supreme Court in Brown vs. GoAf? Thereafter the
Texas & Pacific Railway Company was made a
party defendant.

"The pleadings," says the court, "show a state
of facts which would have entitled John Gay to have
maintained this action against the railway company
for the injury, had he lived ; but as it has been held
that actions for injuries resulting in death could
not be maintained against receivers under the law
as it was when the injury and death in question
occurred, questions have been certified to this court
under pleadings and a judgment against the railway
company which make them pertinent."

The first question certified was, "Did the Circuit
Court of the United States for the District of Louis-
iana have jurisdiction to take possession through a
receiver of that part of the road situated in the
State and Northern District of Texas?"

After quoting the act of Congress chartering the
Texas & Pacific Railway Company, and acts sup-
plementary thereto, showing that the eastern term-
inus of that road was fixed at Marshall, Texas, and
that no part of the line as chartered and authorized
by said acts, was in Louisiana, the court says that

176 Texas, 44.

226 The Supreme Court of Texas

the case presented is not one in which one railway,
under the terms of its charter, extends through or
into two or more states, in one of which a receiver
over the entire road was appointed by a court sitting
in a state in which part of the road was ; but that the
case is one in which a receiver was appointed by a
Circuit Court of the United States sitting in and for
the Eastern District of Louisiana, to take possession
of, operate, and control a railway, no part of which
was in the State of Louisiana.

The court held that the appointment of a receiver
by a court of general jurisdiction ought to be held
conclusive of the power of the court to make the
appointment when called in question collaterally,
unless it appears that in the particular case the court
was without jurisdiction.

Jurisdiction, the court declared, must depend on
the laws creating the court and prescribing its
powers; and if it attempts to exercise a power not
conferred, its judgments and decrees are not binding
even upon the parties, and may be declared inopera-
tive by any tribunal in which effect is sought to be
given them; that if the fact on which jurisdiction
depends is determined by law, then resort to pre-
sumptions ordinarily indulged in, in favor of the
powers of a court of general jurisdiction which has
assumed to act in a given case is neither necessary
nor admissible.

The court expressed its conviction that in the
matter under consideration, it appeared through a
positive law, creating the Texas & Pacific Railway
Company and fixing the locality of its road, that
no part of that road extends into the State of Louis-

The Supreme Court of Texas 227

iana; and the inquiry was presented whether the
Circuit Court of the United States sitting in a dis-
trict in that State had jurisdiction to appoint a re-
ceiver with power to take possession of a railway
situated in this State, and to control and operate it
under its orders.

While recognizing the importance of avoiding a
conflict between the courts of the United States
and the State courts, which could not be overesti-
mated, the court believed that such harmony between
them could most surely be preserved by strict regard
by each for its own jurisdiction, as usurpation of
power by either was conducive to conflict ; that where
one has assumed the power to act in a given case,
every lawful presumption should be indulged that
it did not act without jurisdiction ; but that when it
was made clear that either had acted without lawful
power, the other, when called upon to adjudicate the
rights of litigants, should not refuse to make in-
quiry even as to the jurisdiction of the other, when
such was necessary to the determination of a ques-
tion upon it, without surrendering power conferred
upon them for the preservation of the rights of
litigants before them.

The court declared that a receiver could never be
lawfully appointed unless necessary for the pre-
servation of property, the preservation and enforce-
ment of rights of persons having claims against it,
or to have it applied to some lawful purpose from
which it has been or was likely to be diverted if the
court did not take possession of it through a re-
ceiver, and so cause it to be applied or managed as
might be deemed by the court most beneficial to all

228 The Supebmb Court op Texas

persons interested, having due regard to fixed rights.

Citing various acts and decisions thereon establish-
ing the rule that jurisdiction of Circuit Courts of
the United States is confined to the several districts
in which they are situated, the court concludes that
the courts named have no jurisdiction of the prop-
erty of a railway company not within their districts ;
that it follows that a court cannot confer upon a
receiver power outside of the territory over which
it has jurisdiction, for the reason that its process
could not be effective beyond that, unless authorized
by statute to reach to other territory within the
limits of the country to which the court belongs;
and that where the process of a court can not go and
be entitled to respect and enforcement, its officers
could not have power.

The court did not believe that a case could arise
in which a court would have power to appoint a
receiver where there was no property of which the
court might take possession through such receiver;
that if the property be immovable, or movable, but
so connected with immovables as are cars or other
like property necessary to and used in the operating
of a railway, then the suit in which a receiver to
take possession of them may be appointed is neces-
sarily local in its character, for in such case the
court operates directly upon the thing. Such pro-
ceeding, says the court, is not one in rem, but such
is its nature; and under general rules everywhere
recognized, such proceedings can be had only where
the thing to be taken is in the jurisdiction of the
court. While recognizing that the line between ac-
tions termed local and transitory, in some of the

The Supbeme Court op Texas 229

decided cases, was shadowy, the court declared that
in no case could a suit, the purpose of which was to
subject certain property, whether personal or real,
to the payment of a debt, or to have it placed in the
possession of and under the control of a court for
any purpose of administration, be termed other than
a local action.

Whether the lex rei sitae or the lex domicilii be
applied to the movable property of the Texas &
Pacific Railway Company, was considered by the
court as unimportant, as under neither was its situs
in the State of Louisiana, unless there in fact; and
even if in the course of railway traffic some of the
movable property belonging to it was in fact in
Louisiana when the receiver was appointed, that
could not confer jurisdiction on the court making the
appointment, over property not so situated.

One of the questions certified to the court for
answer was: "Would the company be liable for
such negligent act, if the receiver was appointed and
discharged, and the property restored to it by con-
sent and collusion, as alleged by appellees, whether
the court making the appointment had or had not
the requisite jurisdiction? And if the court had
jurisdiction, could that issue be made available in
this suit?"

The Supreme Court, answering these questions,
says that it was alleged by appellees that the suit
in the Circuit Court of the United States by which
the receiver was appointed was collusively brought,
and that the receiver was appointed by the consent
of all parties thereto ; and that while ostensibly act-
ing as a receiver the person so appointed was really

230 The Supkeme Cotjkt of Texas

but the agent of the railway company during the
time he managed its property.

"If a court," says Chief Justice Stayton, "ap-
pointing a receiver has jurisdiction over the prop-
erty to which the receivership relates, its orders
and decrees will be binding on the parties to the
suit, and must be given effect so far as they affect
the property; but it does not follow from this that
the true relation of the person appointed to the
railway company when property is placed in his
possession may not be inquired into whenever that
becomes necessary in litigation between the com-
pany and persons not parties to the suit in which
the appointment was made.

"If the court has jurisdiction, every reasonable
presumption ought to be indulged that the relation
of the receiver to the property and its owner is
what that relation ordinarily is; for it ought not
to be presumed, or even found to be true in the ab-
sence of cogent evidence, that a court has made
itself the mere tool of apparently adverse litigants,
or that it entertained a collusive suit.

"A suit is said to be collusive when brought by
seemingly adverse parties under secret agreement
and co-operation, with view to have some legal
question decided which is not involved in a real
controversy between them ; or when so brought with
intent to defraud other persons, there being no real
controversy between the parties nor purpose to se-
cure some relief which, as between themselves, would
not be conceded without suit.

"The power of a court to appoint a receiver is
based on the fact of real litigation between the

The Supreme Court of Texas 231

parties, in which it becomes necessary in the opinion
of the court to take possession of property to which
the controversy in some manner relates, in order to
preserve it, or if necessary to administer it for the
benefit of all persons interested; he 'is appointed
upon a principle of justice for the benefit of all con-
cerned. Every kind of property of such nature
that, if legal, it might be taken in execution, may,
if equitable, be put into his possossion. Hence the
appointment has been said to be an equitable execu-
tion. He is virtually a representative of the court
and of all the parties in interest in litigation when
he is appointed. He is required to take possession
of property as directed, because more for the interest
of justice that he should do so than that the property
should be in the possession of either of the parties
in the litigation. He is not appointed for the bene-
fit of either of the parties, but of all concerned.
Money or property in his hands is in custodia legis.'

"If the parties having no real controversy, and
desiring no lawful relief which makes resort to a
court necessary, institute a suit and have a receiver
appointed to take possession of property for the
purpose of defrauding other persons or to em-
barrass them in assertion of a right against one of
the parties and its property, no principle of justice
sanctions the interposition of the court or the ap-
pointment of a receiver ; and it would be a perversion
of justice to hold otherwise than that a receiver
appointed under such circumstances is the agent of
the person or corporation whose property may thus
collusively be placed in his possession.

"The theory on which a receiver is held to be an

232 The Supreme Court op Texas

officer of the court appointing him, and not the agent
of the owner, whose property is placed in his pos-
session, is that the property to be controlled is taken
from the custody and management of its owner and
made subject to the control of the court without his
consent; but when the defendant owner asks the
court to do this, he, in effect, asks the courts to
make an appointment for him, and it is but just
that a receiver so appointed should be held to be
his agent.

"That a plaintiff collusively acts with a defendant
for such purpose only aggravates the case; for this
enables the owner to impose upon the court, and
such plaintiff has no ground for complaint if the
receiver be held the agent of the owner in reference
to every act out of which, in the management of the
property, obligations to other persons may arise.

"Corporations ought not to be heard to say that
they are either indisposed or incompetent to man-
age their own affairs, and that therefore some court
should take charge of them through a receiver."

Chief Justice Stayton died in July, 1894, and was
succeeded by Justice Gaines, Leroy G-. Denman
being appointed to fill the vacancy caused by that
promotion, the court as thus constituted, entering
upon its duties at the beginning of the October, 1894,
Term of the Supreme Court.

Leroy Gilbert Denman was born in Guadalupe
County, Texas, October 31, 1855. He received his
education in the common schools of Guadalupe and
Gonzales counties. He was employed for four
years in teaching schools in his native county, which
supplied him means to pay his expenses in at-

The Supreme Court of Texas 233

tending the University of Virginia, from the law de-
partment of which he received his degree of Bachelor
of Laws in 1880. Thereafter he engaged in practis-
ing law at New Braunfels, Texas, for two years.
In 1884 he removed to San Antonio, where he formed
a law partnership with his brother-in-law, Fred
Cocke, under the firm name of Cocke & Denman.
In the following year Thomas H. Franklin became
a member of the firm. Shortly thereafter Mr.
Cocke retired, and the business continued under the
firm name of Denman & Franklin, which became
widely and favorably known as among the ablest
and most successful in Texas. His connection
with this firm continued until his appointment as
Associate Justice of the Supreme Court of Texas.
Judge Denman was an able, distinguished and suc-
cessful advocate, and an eminent jurist whose effic-
ient labors as a justice of the Supreme Court entitle
him to rank with great judges who have adorned
that august tribunal. He possessed a greater num-
ber of friends and acquaintances than probably any
other citizen of Texas, whose admiration, esteem
and respect was merited by his excellent character,
kindly consideration and just treatment of all with
whom he came in contact in the social and business
relations of life.

CHAPTER VII.
1895-1917.

Higgins vs. Bordages — Homestead Exemption From Street
Improvement Lien — Lufkin vs. Galveston, Overruled — Stor-
rie vs. Cortes — Wright vs. Tipton — F. A. "Williams Succeeds
Associate Justice Denman — Sketch of Justice Williams —
First Baptist Church vs. Fort — Doctrinal Discussion — State
vs. Deaton — Parental Obligations — Houston & Texas Cen-
tral Railway Company vs. State — Construction of Distinct
Acts of Legislature on Same Subject — State vs. Shippers'
Compress Company — Anti-Trust Law of 1895 Unconstitu-
tional — Stare Decisis — State vs. Laredo Ice Company — Con-
struction of Anti-Trust Law of 1899 — Brown vs. Galveston —
Power of Governor to Appoint City Commissioners — Hatch-
er vs. Range — Commendable Works of Codiflers — Interna-
tional & Great Northern Railroad Company vs. Railroad
Commission — Constitutionality of Act Creating Commission
Upheld — Railroad Commission vs. Houston & Texas Central
Railway Company, Modified — State vs. Missouri, Kansas &
Texas Railway Company — Restriction in Business — Norton
vs. Thomas & Sons — Construction of Anti-Trust Law — State
vs. Galveston, Harrisburg & San Antonio Railway Com-
pany — Constitutionality of Gross Receipts Tax Upheld —
State vs. Texas & Pacific Railway Company — Railway Char-
tered by Act of Congress Exempt from Gross Receipts Tax —
Missouri, Kansas & Texas Railway Company vs. Shannon —
Valuation of Intangible Assets by Tax Board Sustained —
Texas Company vs. Stephens — Construction of Law Taxing
Pipe Lines — Lively vs. Missouri, Kansas & Texas Railway —
Illegal Discrimination — Justice Brown Succeeds Chief Jus-
tice Gaines — William F. Ramsay Appointed Associate Jus-
tice — Sketch of Justice Ramsay — Joseph E. Dibrell Succeeds
Associate Justice Williams — Sketch of Justice Dibrell —
Church vs. Bullock — Place of Public Worship Defined —
State vs. Duke — Right of Social Club to Supply Liquors to
Members — Nelson Phillips Succeeds Associate Justice Ram-
say — Sketch of Justice Phillips — Justice Phillips Succeeds
Chief Justice Brown — J. E. Yantis Appointed Associate

The Supreme Court or Texas 235

Justice — Sketch of Justice Yantis — William E. Hawkins
Succeeds Associate Justice Dibrell— Sketch of Justice Haw-
kins.

In Eiggins vs. Bordages, 1 the court overruled the
case of Lufkin vs. City of Galveston, 2 and decided
that the Constitution exempted homesteads from
forced sale for the payment of assessments for local
improvements.

In the opinion rendered by Justice Brown, the
court says :

"The Constitution of this State, in the six-
teenth article and fiftieth section thereof, has in such
plain and unmistakable language denned and limited
the liability of homesteads to forced sale that no de-
partment of the State government can disregard
it. Prom the inception of homestead exemptions in
this State, the changes have been in the direction of
larger exemptions and more perfect protection.
Every decision of the courts which trenched upon the
liberal spirit of the Constitution in that particular
has been met at the next assembling of the people in
convention by a provision to meet the construction
thus given. Whether it is good or bad policy is not
a question for the courts. The Constitution is par-
amount, and must be observed and enforced.

"The learned judge who wrote the opinion in the
case of Lufkin vs. Galveston said . . . that 'the
plain import of the Constitution's terms is that it
(the homestead) is not protected from taxes that
may be due on it.' And again says: 'Nor does it

188 Texas, 458.
258 Texas, 545.

236 The Supreme Court of Texas

draw any distinction between general and special
taxes to which it may be subject.' It is not asserted
that the assessment in question is a tax, general or
special; but we conclude that it must have been
treated as a special tax. As it is too clear for argu-
ment that it is not a general tax, is it a special tax?
If it be a special tax, then it is taxation, and would
fall within the requirement that 'all taxation must be
uniform and equal. ' If a special tax it must be a tax
for some purpose, and would come under the limita-
tion as to taxes 'for special purposes.' And again,
if it were a tax, though it be for a special purpose,
it would be embraced in the terms of the law au-
thorizing the collector to sell property for unpaid
taxes. Our courts have held that such assessments
are not included in any of these expressions, and we
cannot see how it can be held to be a special tax,
when it has none of the characteristics of a tax in
any sense in which it is used in the Constitution. . . .
"The decision in Lufkin vs. City of Galveston is
directly antagonistic to the express provisions of
the Constitution of this State. The doctrine of that
case is in- antagonism to a long line of decisions of
our own courts upon kindred questions. It is unsup-
ported by any other decisions of this court, and is
opposed to a line of decisions in the courts of other
States, almost unbroken. To follow it means to dis-
regard the Constitution, as we understand its pro-
visions ; and in our judgment would deprive citizens
of a constitutional protection provided by a conven-
tion representing the sovereign power of the State,
which has the right to determine the policy of this
State with regard to this question."

The Supreme Court or Texas 237

In Storrie vs. Cortes and Wife 1 the court held
that the constitutional provisions against laws im-
pairing the obligation of contracts was not violated
by a decision of State eourt overruling a previous
decision sustaining the validity of an obligation,
though such ruling is applied to rights acquired on
the faith of such previous decision, after it was
pronounced, and before it was overruled. It was
also held that where the charter of a city authorized
the cost of local improvements to be made a personal
charge against the owner, as well as a lien against
the property, the holder of a certificate covering the
cost of the improvements was entitled to a personal
judgment against the owner of the lot, though his
lien against the property, a homestead, could not be
enforced.

In Wright vs. Tipton 2 it was held that in action
on a liquor dealer's bond for the penalty provided by
law for the sale of intoxicating liquors to anyone
after notice by his wife not to sell to such person,
the wife was the "person aggrieved" within the
statute, and could maintain the action though her
husband refused to join in the action. The court said
that the intention of the Legislature in enacting the
law was to protect the wife against the indulgences
of the husband, who was supposed to have progressed
in drunkenness until he had lost self-control, and
was beyond the reach of the wife's influence, by
putting restraint upon vendors of liquors; that if
it had been intended that the husband should sue

190 Texas, 383.
292 Texas, 168.

238 The Supreme Court or Texas

in such cases, or that his consent for the wife to
sue should be given, the Legislature certainly would
have expressed such an extraordinary purpose,
which would give the wife a right of action subject
to the control of him who would be under the influ-
ence of the party to be sued, and that such a law
would be a farce, and unworthy of any legislative
body. The case is interesting merely as illustra-
ting the kind of questions sometimes certified to
the Supreme Court for its decision.

Associate Justice Denman resigned May 1, 1899,
and on May 9, 1899, F. A. Williams was appointed
his successor.

Judge F. A. Williams was born in Macon, Missis-
sippi, October 6, 1851. In the early part of 1871 he
removed to Texas, locating at Crockett, where he
read law under his brother-in-law, the Hon. D. A.
Nunn, then and thereafter one of the leading and
most successful lawyers of the State. In 1872 he
was admitted to the bar, when he formed a partner-
ship with Mr. Nunn, a firm which enjoyed an exten-
sive and successful practise from the beginning, and
of which he continued an active member until 1884,
when he received the nomination for District Judge
of the Third Judicial District, was thereupon ap-
pointed to that position by Governor Ireland, to which
he was thereafter elected, in the autumn of 1884, and
re-elected in 1888. His superior judicial abilities
as disclosed in the efficient discharge of the duties
devolving upon him in that position, resulted in his
recognition as among the ablest trial judges who
have presided in the district courts of the State,
and upon the creation of the Courts of Civil Ap-

The Supreme Court or Texas 239

peals, in 1892, he received the Democratic nomina-
tion and was appointed by Governor Hogg one of
the Associate Justices of the Court of Civil Appeals
for the First Supreme Judicial District at Galves-
ton, the other members of the court then being
Judge C. C. Garrett, Chief Justice, and Judge H.
Clay Pleasants, Associate Justice. He served with
marked distinction in that position, to which he was
elected in successive elections, until 1899, when he
was appointed by Governor Sayers to the position
of Associate Justice of the Supreme Court of Texas
left vacant by the resignation of Justice Denman.
He served in that position with Chief Justice R. R.
Gaines, and Associate Justice Brown, until the resig-
nation of the former, in January, 1911, when Judge
T. J. Brown was appointed Chief Justice, and Judge
W. F. Ramsay, Associate Justice, by Governor
Campbell. He was a member of the court as thus
organized, until April, 1911, when his resignation,
which had been previously tendered Governor Col-
quitt, took effect. Thereafter he entered and contin-
ued the practice of law at Austin, in partnership
with Judge N. A. Stedman, until May, 1913, when he
removed to Galveston and became senior member of
the law firm of Williams & Neethe, one of the
ablest connected with the Texas bar.

Judge Williams is one of the ablest judges who
has served as a member of the Supreme Court in
later years. His numerous opinions, during the long
period of his distinguished service upon the court
demonstrate his superior judicial attainments,
unexcelled by those of any member of it in
the early days of its great history, or by the

240 The Supreme Court of Texas

opinions of those who have ornamented that tribunal
in recent years. To the legal profession and others
familiar with his opinions, no other recommenda-
tion of his superior judicial abilities is necessary.
No member of the court is believed to have enjoyed
the admiration, confidence, esteem and respect of the
bar and the courts of Texas to a greater extent than
Judge Williams. His voluntary retirement from the
court, upon which he had served so long and well,
was universally regretted by the lawyers of Texas,
and especially by those whose practice in the court
had brought them in frequent personal contact with
him and who enjoyed his acquaintance and friend-
ship. Judge Wiliams has the merited distinction of
ranking with Justices Stayton, Gaines, Brown, and
others of those noted jurists whose labors upon the
Supreme Court have preserved in latter years the
splendid traditions and reputation of that tribunal
established in its early history by those great judges,
Hemphill, Lipscomb, and Wheeler.

In First Baptist Church of Paris vs. Fort et al., 1
the court held that property of a church of strictly
congregational or independent organization, acquired
by purchase or donation, charging it with no specific
trust other than the use of the congregation as a re-
ligious society, is not dedicated to the propagation
of the particular doctrines adopted and held by the
society at the time it was acquired.

Plaintiffs, members of the First Baptist Church of
Paris, Texas, sought to recover possession of the
church building, lot, and premises, alleging that a

193 Texas, 251.

The Supbeme Court of Texas 241

majority of the members of the church had departed
from the original confession of faith adopted by
the church in its organization, and had di-
verted said property from the purposes to which it
was dedicated; that plaintiffs and those whom they
represented, a minority of the congregation, had
adhered to the original confession of faith, and were,
in fact, the First Baptist Church of Paris, and en-
titled to the possession of the property. The facts
established that on the 10th day of April, 1861, there
was in Paris a church known as the Paris Baptist
Church, to which certain named citizens conveyed
the lot upon which the present building is situated,
for the sole and exclusive use and benefit of the
Paris Baptist Church; that at its organization, and
before the making of the deed, the church had
adopted what is known as the New Hampshire Ar-
ticles of Faith. The church building, located on the
lot, was erected by subscriptions from the members
of the church and others, there being nothing to show
that any conditions were attached to the donations
made by such persons nor any terms exacted in the
expenditure of the fund.

The court thought it was correctly assumed as a
matter of common knowledge that in this country
houses of religious worship are usually built by sub-
scription, not confined to the membership of the
particular church or denomination, but, in fact, that
members of all denominations, as well as those who
belong to no church, contribute freely to the erection
of such buildings.

While it is not claimed, says the court, that a con-
gregation of Baptists who organize themselves into

242 The Supreme Court of Texas

an independent church and adopted articles of faith
by a majority vote thereby bound themselves to ad-
here to the articles so adopted for all time ; if, how-
ever, they should afterwards take up a subscription
for the purpose of building a house of worship,
or receive donation of a lot, under the doctrine
asserted by plaintiffs, the articles already adopted
would become immutable, and the church be deprived
of the power to change or modify that declaration,
for beneficiaries cannot abolish a trust without con-
sent of the donor, though they may be unanimous
in the wish. Conceding the soundness of the prop-
osition, it resulted that before buying the lot or
building the church for the Paris Baptist Church,
a majority of that congregation could have abolished
the New Hampshire Confession of Faith, and could
have adopted the Philadelphia Confession, or could
have established a confession drafted by themselves,
or they might have abolished all articles of faith and
relied upon the Bible alone as their creed. Accord-
ing to this contention, when the deed was made to
the lot and the house built by subscription, the right
to repeal or change the articles of faith was taken
away from the congregation, and to change it would
not only forfeit their rights in the property, but
would deprive them absolutely of their membership
and good standing in the church, which, to a Chris-
tian, was of greater value than houses or land.

"The presumption," says Justice Brown, "in-
volves the absurdity that a Methodist who contrib-
uted to the building of the house of worship for the
Paris Baptist Church did so for the express purpose
of perpetuating and promulgating the doctrine that

The Supreme Couet of Texas 243

immersion alone is baptism, and that infants are
excluded from the rights of the church. The con-
tributing Jew — they are not a few — is presumed to
be especially anxious that the Messiahship of Christ
should be taught, though the failure to believe it
cast down his temple and broke down the walls of
his holy city, making his people wanderers upon the
earth. If the majority of such a congregation should
be converted to the belief that sprinkling is valid
baptism, and so change their teachings and prac-
tise, the Methodist brother who aided to build the
house could interfere and say, 'No, you must teach
immersion as the only valid mode, because my gift
was based upon your continuance in teaching that
error.' Gr, if the majority should abandon their
faith in Christ as the Messiah and change their teach-
ing . . . the Jew contributor could say, 'Nay,
you must not abandon your doctrine, because my do-
nation binds you to teach the divinity of Christ, al-
though false in fact.' If a member of another Bap-
tist church which adopted the Philadelphia confes-
sion contributed, he might enjoin the church at Paris
from abolishing the existing articles and adopting
that which his own church indorsed. The soundness
of the teaching is not involved in the proposition;
error is perpetuated the same as truth. Courts can-
not decide between conflicting opinions upon theo-
logical questions. The fallacy lies in presuming the
existence of a purpose of which there is no proof,
and in binding the mind and consciences of men by
the presumed secret intentions of those who aid in
such enterprises.

244 The Supkeme Cotjbt op Texas

The case of State ex rel Alice Wood vs. Daniel
Beaton 1 was a habeas corpus proceeding by
the relator for the recovery of her minor child from
respondent and wife, to whom she had delivered
it under the assurance that it should never be taken
from them. The trial court found that respondent
had cared for the child as well as a natural parent
could have done, that he and his wife had become
attached to it, and that its interest would be as well,
if not better, subserved by remaining in the posses-
sion of respondent, than that of its mother, and
rendered judgment refusing the application of re-
lator.

Justice Brown in rendering the opinion observed
that under the facts found by the trial court there
was no question of the moral or other qualifications
of the plaintiff for the discharge of her maternal
duties to the child, . . . but that the trial court,
upon the facts, expressed the conclusion "that the
interest and welfare of the child, Austin Dillard,
will be as well, if not better, subserved by remaining
with the respondent and his wife, who have adopted
it as their own, than if his possession and custody
were given to his mother, the applicant herein."

"G-od, in His wisdom," declared Justice Brown,
"has placed upon the father and mother the obliga-
tion to nurture, educate, protect and guide their off-
spring, and has qualified them to discharge those
important duties by writing in their hearts senti-
ments of affection and establishing between them
and their children ties which cannot exist between

1193 Texas, 243.

The Supkeme Cotjkt of Texas 245

the children and any other persons. Especially is
this the case with the mother. Parents cannot di-
vest themselves of the obligations imposed upon them
by their Creator, but when they have become disqual-
ified for a proper discharge of such duties, civil gov-
ernment has the right, in the interest of the child,
to provide for its proper nurture and education. . . .

"The facts found do not establish with that cer-
tainty which the court must require that the interest
of the child, Austin Dillard, or of society itself, de-
mands that he shall be taken from his mother and
continued in the possession of another."

In Houston & Texas Central Railway Company
vs. State of Texas, 1 the majority opinion by Chief
Justice Gaines, and the dissenting opinion by Justice
Brown, are interesting and instructive discussions
of the rules of statutory construction appli-
cable to distinct acts of the same Legislature upon
the same subject; the weight which courts should
attach to the construction given statutes by execu-
tive officers of the government and subsequent Leg-
islatures; political and economic conditions as af-
fecting the legislative policy; the bearing of legisla-
tive committee reports on legislative policy; and the
doctrine that repeals by implication are not favored.

In the case of State of Texas vs. Shippers' Com-
press Company 2 the court held that the Texas anti-
trust law, enacted in 1895, was unconstitutional, be-
cause exempting from its operation agricultural
products in the hands of producers ; that the creation

195 Texas, 507.
295 Texas, 603.

246 The Supreme Court of Texas

of a corporation for the purchase of cotton com-
presses was not sufficient evidence of an intention
to violate the trust law in the doing of things which
the law authorized it to do; that the acquisition by
such corporation of six compresses on the same day
might afford evidence that it was the purpose of its
promoters to acquire such properties, but as the act
was lawful it was insufficient evidence of an unlaw-
ful purpose in creating the corporation.

"The State," says the court in the opinion, "seeks
to forfeit the charter of the defendant corporation
because the incorporators combined to restrict aids
to commerce, and procured the charter with intent
to carry out that purpose. The defendant insists
that the law is unconstitutional, therefore void in
whole, and will not support the action to forfeit the
charter. Upon the same objection we held the anti-
trust law of 1889 constitutional, and there is
no such difference between the two laws as would
affect the decision of this question. We believe that
our decision is correct ; that the law is not in contra-
vention of the Constitution of the State nor of the
United States. Houck vs. Brewing Association. 1 In
the case of Connolly vs. The Union S. and P. Co., 2
the Supreme Court of the United States held that
a statute of the State of Illinois, in all essential par-
ticulars the same as the Act of 1895, was in conflict
with the Fourteenth Amendment to the Constitution
of the United States, because it excepted 'agricul-
tural products and live stock while in the hands of

188 Texas, 189.

223 Supremle Court Reporter, 431.

The Supreme Court or Texas 247

the producer or raiser.' We recognize the superior
authority of the Supreme Court of the Uinited States
upon this question, and in obedience to its decision
we shall hold that in so far as the law of 1895 conies
within the terms of the Connolly case, it is invalid ;
it will not support an action by the State to recover
a penalty for a violation of the law, nor will it, in
suits between corporations or individuals, support
a defense based upon the fact that the right of action
originated in violation of the anti-trust law. But to
the extent that the statute of this State is not em-
braced in the decision of the Supreme Court of the
United States, we shall adhere to our former decision
that it is constitutional and valid, and therefore en-
forcible by the State."

In the case of the State of Texas vs. Laredo Ice
Company et al., 1 suit was instituted by the State
against the defendants for the recovery of penalties
for violating the anti-trust law enacted in 1899. A
general demurrer to the petition presenting the ques-
tion of the constitutionality of the law was sustained
by the trial court, and the case dismissed, from which
ruling the State appealed. Appellee contended that
the act was unconstitutional and void because its
fourteenth section made it a part of the Act of 1895
by incorporating section 12 of the law of 1895 there-
in; because it prescribes excessive fines for its in-
fraction; provides that the failure of a person to
respond to the demand of the Secretary of State for
an affidavit is made prima facie evidence of a viola-
tion of the law; and in conflict with the Consti-

196 Texas, 461.

248 The Supreme Cotjet of Texas

tution, which provides that no person shall be com-
pelled to give evidence against himself.

The court did not deem it necessary to decide the
last objection for the reason that if it was in viola-
tion of the Constitution in the respect named, the
obnoxious provision could be eliminated and the act
would still be sufficient to accomplish the general
purpose the Legislature intended in its enactment.
The court held that fines and other punishments
which may be imposed upon persons violating the
law is a matter peculiarly within the power and dis-
cretion of the Legislature, and that courts have no
power to control or restrain that discretion except in
extraordinary cases, where it becomes so manifestly
violative of the constitutional inhibition as to shock
the sense of mankind. "What," inquires the court,
"is to be the legislative guide in performance of its
duty but its sound judgment and the wisdom of ex-
perience? And how can courts with reason or pro-
priety question the action of the Legislature or con-
trol or restrain its discretion except when the min-
imum penalty is so plainly disproportioned to the
offense or act for the violation of which it is fixed
as to shock the sense of mankind?" Express Com-
pany vs. Walker. 1

Disposing of the contention that the act of 1899
was void because incorporating a clause of the act
of 1895, which had been held unconstitutional, the
court said that an amendment to a statute was not
cumulative, because it takes the place of the part
of the law it amends ; that it was true that, in seek-

198 Virginia, 66.

The Supreme Court of Texas 249

ing the meaning of language used in a statute, it
was proper to consider all of the acts of the same leg-
islative body which are in pari materia, because 'it
is supposed that there had been no change in the leg-
islative intent and purpose,' unless it is manifested
by some change in language, but that this was a rule
of construction merely, and did not constitute each
a part of every act on the same subject.

In Brown et al. vs. City of Galveston 1 the court
upheld the constitutionality of a charter of the city
of Galveston which conferred upon a president and
board of commissioners, a majority of whom were
appointed by the Governor, power to govern the
city, usually committed to a mayor and city council.
One of the important points urged by appellants in-
volved the constitutionality of the section of the
city charter of Galveston which empowered the Gov-
ernor of the State to appoint three members of the
governing board of commissioners, and of those
which invested them with the powers of the mayor
and board of aldermen.

"This question," says the court, "arose in the
ease of Ex parte Lewis, which was decided by the
Court of Criminal Appeals in this State. The ma-
jority opinion was delivered by the Honorable John
Henderson, Justice, and concurred in by the Hon-
orable W. L. Davidson, Presiding Justice of that
court. Judge M. M. Brooks dissented from the
opinion of the majority. In that case the major-
ity held that the law which authorized the Governor
to make the appoinment of the three commissioners

197 Texas, 1.

250 The Supreme Court op Texas

was contrary to the Constitution of the State of
Texas. The majority and dissenting opinion each
show extensive research into the authorities and con-
tain able and elaborate arguments and discussions
of the principles involved. Recognizing the equal
authority and dignity of that court, we approach
the investigation with much hesitancy because of the
delicacy of the duty to be performed. We shall
accord to the opinion of the majority in that case
equal weight and authority with that of any court
of last resort, and because it is a court of co-ordinate
powers with this, acting under authority derived
from the Constitution, we feel constrained to con-
form our opinion to that, if we can possibly do so
in the discharge of our duty. The industry of the
(judges who wrote those opinions has relieved us
of much labor that would have been necessary to
obtain the same list of authorities, and we are much
aided in the solution of this important question by
the arguments presented by each.

"It was claimed by the appellant and so held by
the court of Criminal Appeals, that the provisions
of the charter in question are in violation of the
following section of the Constitution of Texas: 'All
qualified electors of the State, as herein described,
who shall have resided for six months immediately
preceding an election within the limits of any city
or incorporated town, shall have the right to vote
for mayor and all other elective officers; but in all
elections to determine the expenditure of money or
assumption of debt, only those shall be qualified to
vote who pay taxes on property in said city or
incorporated town.'

The Supkeme Cotjkt of Texas 251

"The enactment by the Legislature of the charter
of Galveston involved," says the court, "the con-
sideration by each member of both houses and the
Governor of the question now before us, that is,
each must have determined that the bill did not
violate the Constitution of the State of Texas in any
particular. A court has no power to review the
action of the legislative department of the govern-
ment, but when called upon to administer a law
enacted by it, must, in the discharge of its duty,
determine whether that law is in conflict with the
Constitution, which is superior to any act that the
Legislature may make; but in the examination of
such a question we must bear in mind, that, except
in the particulars wherein it is restrained by the
Constitution of the United States, the legislative de-
partment may exercise all legislative power which
is not forbidden expressly or by implication by the
provisions of the Constitution of the State of

-LGXclSa • • •

"The honorable Court of Criminal Appeals ex-
pressed its conclusion that the sections of the city
charter of the city of Galveston in question are in
conflict with the Constitution in the following lan-
guage: 'However, it is not necessary to test this de-
cision on implication, as, in our opinion, the Consti-
tution expressly prohibited the Legislature to either
appoint directly, or through the Governor, the local
municipal officers of cities and towns, inasmuch
as the Constitution expressly confers the power on
the citizen voters of the municipality "to elect the
mayor and other elective officers." ' We hold that the
mayor and the board of aldermen of said city were

252 The Supkeme Court or Texas

elective officers under and by virtue of our Constitu-
tion, and that the majority of these, in the face of our
traditions and of the organic law itself, having been
appointed by the Governor, any law or ordinance
passed by them was without authority, inasmuch as
they were not officers of the municipality, and could
not, under our Constitution be such.' That court
could arrive at its conclusion only by implication,
for the language used in the section of the Constitu-
tion quoted does not declare that there shall be a
mayor for each town and city. As we have seen,
the power of the Legislature can be limited only by
a prohibition contained in the Constitution either
in express terms or by fair implication arising from
the instrument. If the purpose the convention had
in adopting the section in question can be effected
without the prohibition, none will be applied. . . .
" 'The legislative power of this State' means all
the power of the people which may properly be
exercised in the formation of laws against which
there is no inhibition express or implied in the
fundamental law. Since a municipal corporation
can not exist except by legislative authority, can
have no officer which is not provided for by its char-
ter, and can exercise no authority which is not
granted by the Legislature, it follows that the crea-
tion of such corporations and every provision with
regard to their organization is the exercise of legis-
lative power which inheres in the people, but by the
Constitution is delegated to the Legislature; there-
fore it is within the power of the Legislature to de-
termine what form of government will be most bene-

The Supreme Court of Texas 253

ficial to the public and to the people of a particular
community."

The court was of the opinion that the contrary-
doctrine was in conflict with the well settled princi-
ples of constitutional construction that the power of
the Legislature can be restrained only by a pro-
hibition expressed or implied from some provision
or provisions of the Constitution itself; that it was
contradictory of the truth of the history of munic-
ipal corporations in Texas, it being a matter of
common knowledge that charters are formulated by
the people of the towns, presented by their repre-
sentatives to the Legislature, and in case of opposi-
tion, committees attend upon the Legislature to
secure the wish of the majority.

In the case of Hatcher vs. Range, 1 the court in an
opinion by Justice Brown, announced that it had
reluctantly followed the rule of the common law,
that spoken words imputing a want of chastity to
a female were not actionable per se.

Following a citation of the Texas cases approving
the common law rule, the court says :

"From these quotations it is plain that the three
eminent judges quoted were reluctant to follow pre-
cedents so unreasonable and unjust. We are equally
bound by those precedents, unless there be present
in this case a sound reason why they should be dis-
regarded which was not considered in those cases.

"At common law libel was indictable; it was an
offense against the public, therefore actionable. In
his work on Non-contract Law, . . . Mr. Bishop

198 Texas, 85.

254 The Supreme Court of Texas

uses the following language: 'Libel, with a very-
narrow margin of verbal slander, is one of the
wrongs against the public, punishable as crime. And
it is one of the doctrines in our jurisprudence that
he who suffers from a crime specially, in a way or
degree differing from the rest of the public, may
have his civil action against the wrongdoer.' The
same writer says: 'The doctrine in general terms
is, that the civil wrong and the criminal are legally
distinct things, though both may proceed from one
act of the offender. If the injury is of a nature
falling on the entire community an individual suf-
fering from it only as others do can maintain no
action against the wrongdoer, even should it in a de-
gree causually press more heavily upon him than
upon others. But he who suffers a special damage
may have his suit, though by reason of the public
harm the defendant is also indictable.' Generally
an indictable act which inflicts an injury upon an
individual different from that suffered by the public
will give a right of action against the wrongdoer for
reparation of the damages occasioned. Public nuis-
ances are instances of which it is held that the
private individual, who suffers damage different
from that which flows to the public from a public
nuisance, may have an action for the injury so in-
flicted upon him.

"Prior to 1879 slander was not indictable in this
State, but in the revision of our criminal code which
took effect on the 1st of September, 1879, the re-
visers introduced a chapter upon the subject of
slander in which is embraced the following article:
'If any person shall, orally or otherwise, falsely

The Supreme Court of Texas 255

and maliciously, or falsely and wantonly, impute to
any female in this State, married or unmarried, a
want of chastity, he shall he deemed guilty of
slander, and, upon conviction, shall be fined not less
than one hundred nor more than one thousand dol-
lars, and the jury may in addition thereto, find a
verdict for the imprisonment of defendant in the
county jail not exceeding one year.' 1 This
article of the code did not exist when the
cases of Linney vs. Manton and McQueen vs.
Fulgkam were decided, and was not noticed in
the other two decisions cited. Under this pro-
vision of our criminal law slander is put upon the
same footing with libel, as effecting the public good,
and falls within the rule that any person who re-
ceives a 'special injury different from that which
is inflicted on the public by the perpetration of an
act punishable at law may have redress for the in-
jury so received,' and in our opinion the change
in the law in this respect justifies this court in
departing from the common law rule heretofore
maintained. We therefore conclude that under the
law as it now exists in this State, words spoken
or written which 'falsely and maliciously, or falsely
and wantonly,' impute to a female want of chastity
are actionable, without showing special damages
arising therefrom."

In International & Great Northern Railroad Com-
pany vs. Railroad Commission of Texas, 2 the court
construed so much of the Act of April 3, 1891,
creating the Railroad Commission of Texas, as con-

iPenal Code, Article 645.
299 Texas, 332.

256 The Supreme Court of Texas

f erred the right "to correct abuses," holding that
while the subject was not disclosed in the title of
the act, when considered in its relation to the power
granted in the act to prevent discrimination and
extortions in railroad charges and to establish
reasonable freight and passenger tariffs, it was not
unconstitutional.

The court was of the opinion that the language
employed in the clause of the act quoted was cap-
able of two construction, one of which was not con-
sistent with the Constitution, and the other not in
conflict with that instrument, and that a familiar
rule of construction required that it should be given
the latter.

"It is true," said the court, "that in the case of
Railroad Commission vs. Houston & Texas Central
Railway Company? after having held that the same
language in Section 2 of Article 10 of the Con-
stitution conferred a power upon the Legislature
to correct abuses other than those relating to freight
and passenger tariffs, we said: 'Having used the
same language as that used in the Constitution and
in the same connection, we conclude that the Leg-
islature intended expressly to delegate the power
to the commission that the Constitution authorized
to be delegated to a legislative agency, and the lan-
guage of the Constitution not being confined to
correcting abuses in the rates of freight and pas-
senger tariffs, we hold that the power here conferred
by the Legislature upon the commission empowers
it to correct abuses other than those which may be

190 Texas, 340.

The Stjpkeme Court or Texas 257

connected with the rates of freight and passenger
tariffs.' But we think we were in error in an-
nouncing that doctrine. So broad a proposition was
not necessary to determine the question certified to
this court in that case."

In State vs. Missouri, Kansas & Texas Railway
Company? the court held that a contract between a
railway and an express company by which the
former bound itself not to contract with other ex-
press companies to do business on its road might
not prevent it from furnishing them facilities for
such business without contracting to do so, yet where
the rights granted in the contract were described
as exclusive facilities, and were only to be awarded
by the railway when compelled by legislative or
judicial proceedings ; in which event the contracting
express company was to have credit for sums paid
by such other express companies on the amount due
from it under its contract ; such obstacles interposed
to the admission of other companies to do business,
evidenced an intention to make the rights of the
contracting party exclusive, and to create and carry
out a restriction upon others in the free pursuit of
business.

"The contract in question," says Justice Williams,
"shows by its own terms, that its purpose was to
secure to the express companies, as far as it was in
the power of the parties to do so, the exclusive
right to do an express business upon the railroad,
and to exclude other companies from the enjoyment
of like rights. It is true that by clause (c) it only

199 Texas, 516.

258 The Supreme Court or Texas

bound itself not to contract with others to do an
express business on its road, and, if this were all,
it might be urged that all of the equal and reasonable
facilities, accommodations and rates exacted by the
law might be accorded without express contract;
but the purpose to grant an exclusive right to the
express company is made too plain for argument
by the succeeding clause. Clause (d) expressly calls
the rights granted 'exclusive facilities' and plainly
evidences the understanding that they shall not be
given to any one else unless such action be com-
pelled by legislation or judicial proceedings, and
that, should this be done, the express company shall
have credit for the sums paid by other companies.
This clause shows plainly the intention that the only
express business to be conducted on this road should
be that of the contracting express company, and
that that company should receive the benefit of the
earnings of the railroad company from the business
of any other express companies which it might be
compelled to admit to its lines, which stipulation is
made, presumably, in return for sufficient considera-
tion moving from the express company to the rail-
road company. The obstacle such an agreement
interposes to the admission of other companies to
the facilities given them by the statute is easily
understood, seeing that every other express company
is to be charged for the facilities to be enjoyed by it
the same price that the favored company is to pay
as the consideration for everything the railroad com-
pany agrees to do for it, including the undertaking,
in effect, to exact such prices from all other com-
panies for the benefit of this one. We conclude that

The Supreme Cottrt of Texas 259

there was the purpose to create and carry out a re-
striction in the free pursuit of business."

In Norton vs. Thomas & Sons Company, 1 the
court held that an agreement that a vendor would
not sell any liquor of a certain age and brand in
either of three named cities in which the vendee
engaged in business, until the latter had closed out
his business was not violative of the Texas anti-
trust law.

"The contract," says the court, "does not attempt
to fix or regulate the price of whisky, nor to fix
or limit the quantity thereof. It must be borne in
mind that provision of the statute against limita-
tions on the amount or quality of an article does not
refer to the amount to be sold in or supplied to any
particular community or territory, but to the amount
or quantity in existence ; that is, to what is generally
called the supply, or output. The contract imposes
no limitation such as the statute, when thus under-
stood, prohibits."

In the case of the State of Texas vs. Galveston,
Harrisburg & San Antonio Railway Company, 2 the
court held that the law imposing a tax upon rail-
way companies equal to one per cent of their gross
receipts, was not violative of the Constitution in
denying them equal protection of the laws; that the
exaction of such tax was not the taking of property
without due process of law inhibited by the Constitu-
tion; and that such tax was not a tax upon the re-
ceipts of railroads, but an excise tax for the privilege
of operating them.

199 Texas, 578.
2100 Texas, 153.

260 The Supreme Court op Texas

In disposing of appelees' contention that the tax
was violative of Article 1, Section 8, Subdivision 4,
of the Constitution of the United States which con-
fers upon Congress the power to regulate interstate
commerce, the court held that the statute under
consideration would be open to that objection if it
levied an ad valorem tax on the gross receipts of
the companies, but as the tax was an excise tax on
the privilege of conducting the business, the conten-
tion was without merit.

It was also contended by appellees, that because
they were engaged in interstate transportation they
could not be compelled to pay an excise tax on the
business of carriers in Texas under franchises de-
rived from the State. The court held that the tax
levied by the law was placed upon the exercise of
the franchise within the limits of the State and in
the carriage of local or state business ; and that the
reference to gross receipts of the company was
merely a means by which to ascertain the amount of
tax to be levied. The court was of the opinion that
if the position taken by counsel for defendants in
error were true, no State could levy an excise tax
upon its local railroads chartered under its own
law because it was a fact of common knowledge
that all lines of railroad in the State carry freight
and passengers destined to points beyond the State,
and that which comes from without the State to
points within it. In overruling the contention that
the taxes levied upon railroad companies were not
the same per cent of the gross receipts of each of
them derived from interstate business, and there-
fore not equal and uniform as required by the State

The Supreme Court of Texas 261

Constitution, the court observed that the proposition
was based upon the fact that the gross earnings of
some consist more largely of receipts from inter-
state business than others, and that in consequence
one per cent of the gross earnings of each road would
not be the same per cent of the local earnings of each
road, and that the amount of the tax should be de-
termined by the product of the occupation taxed; a
view of the law which had been determined ad-
versely to the claim of corporations in many cases
decided by the Supreme Court of the United States.

In the State of Texas vs. Texas & Pacific Railway
Company, 1 the court held that a tax of one
per cent on the gross earnings of railroad
companies could not be exacted of the Texas &
Pacific Railway Company, because such company
was created by the Congress of the United States
under powers granted it by the Constitution, from
which it derived its right to carry on business in
Texas ; and that the provisions of a law of the State
subjecting said company to the general laws of the
State applicable to other railroad companies, did
not subject its franchise to taxation by the State.

The court regarded the question as entirely settled
that Congress is authorized, for the necessary and
proper execution of the powers granted to the
federal government, to create corporations, and
empower them to carry on their operations in the
States; that such corporations are to be regarded
as instrumentalities of the United States, and that
the right to conduct their authorized business is be-

HOO Texas, 279.

262 The Supeeme Court of Texas

yond the power of the State in which they operate,
'by taxation, or otherwise, to retard, impede, burden,
or in any manner control."

"If, under present conditions,'* says Justice
Williams, "there appears to be little real foundation
for the assumption that railroads such as this one,
are, in practice, governmental agencies; if there
is little difference, in fact, between them and other
railroads which have not received charters, nor aid,
nor protection form the United States government,
but which may, and perhaps do, render to the gov-
ernment services of a like character and upon the
same terms with them; if their immunity from
State taxation operates as a discrimination between
them and the other roads; and, finally, if the pro-
tection given to them by the Fourteenth Amendment
to the Constitution of the United States, against dis-
criminatory State legislation, detracts much from
the applicability to them of the reasoning upon
which Chief Justice Marshall founded the doctrine
under consideration, the remedy, if there be one,
is not with the Legislatures, or the judiciary of the
States, nor now, perhaps, with the federal judiciary,
but with the Congress of the United States."

In Missouri, Kansas & Texas Railway Company
vs. Shannon, Secretary of State et al., 1 the court held
that the State law requiring the valuation of the
intangible assets of railway companies by a State
Tax Board, was not in contravention of the con-
stitutional provision requiring railroad property
to be assessed by the county assessor in the county

1100 Texas, 379.

The Supreme Court of Texas 263

where situated, as such intangible values have no
situs in the various counties ; that they could only be
valued as attaching to the property as a whole ; and
that they constitute one of the "other subjects" of
taxation, not enumerated in the Constitution, for the
taxation of which the Legislature was authorized to
provide.

Counsel contended that the State Tax Board as
constituted by the Intangible Assets Act, was an
illegal body, in that it was attempted to confer
judicial powers upon the Secretary of State and the
Comptroller of Public Accounts, which were not
executive in their nature, in violation of Section 1,
Article 2, of the State Constitution. The court was
of the opinion that this contention resulted from a
confusion by counsel as to the meaning of the word
"judicial." It declared that the judicial power pre-
scribed by the Constitution related in all instances,
except in the case of Commissioners' Courts, to the
trial of causes; that the word "judicial" was, how-
ever, used, not with strict accuracy in another sense,
as applied to an executive officer who in the exercise
of his functions is required to pass upon facts and to
determine his action by the facts so found — a func-
tion sometimes called quasijudicial. The court held
that the case of Arnold vs. State 1 had settled this
point against counsels' contention. It also held that
the act was not repugnant to the provision of the
Constitution declaring that taxation shall be equal
and uniform.

171 Texas, 239.

264 The Supreme Court of Texas

In Texas Company vs. Stephens et al., 1 it was held
that the business of transporting oil by pipe line for
other persons for hire or profit, was distinguishable
from the ownership and use of pipe lines by owners
thereof for the exclusive transportation of their own
products, as an incident of their business; that
the first, alone, may be taxed without violation of the
Constitution ; and that where, as a method of arriv-
ing at the amount of tax to be charged upon the oc-
cupation of transporting oil, a pipe line company
was required, in its reports of the amount of oil
transported, to include the amount of its own oil
with that transported for others, the law was not
unconstitutional as violative of the provisions of
the Constitution requiring that taxation shall be
equal and uniform.

In construing the provision of the law requiring
that in determining the amount of the occupation tax
which should be levied upon pipe lines, there should
be included, not only the amount for transporting
oil for others, but also the sum representing the cost
of transporting their own oil, an imposition not
placed on other owners of other pipe lines mentioned
in the twelfth section of the act, the court perceived
no constitutional objection to the mere inclusion of
the elements mentioned in ascertaining the scope
of the business. The court thought it probable that
the Legislature might have intended that the value
of the entire use made of a pipe line by one holding
himself out as transporting goods for the public,
should be looked to, and that this should include the

1100 Texas, 628.

The Supreme Court op Texas 265

benefits resulting from its use in Ms own business
as well as in serving the public. It believed that if
such was the intention, it was adopted with reference
to companies transporting oil only, and that there
was an apparent discrimination against them. There
were two difficulties in the way of sustaining plain-
tiff's contention, according to the court's view. In
the first place it was not made to appear, and the
court could not judicially know, that there were in
the State other persons transporting the other
things (gas, steam, artificial heat, etc.) mentioned,
who do not also transport oil. In other words, that
it was not shown that there was in fact any discrimi-
nation between plaintiff and others. In the second
place, there was the question of classification to
which the court had referred. It did not conceive
that the circumstance that all persons owning and
controlling pipe lines were included in the first part
of the section and were taxed as a class, as plain-
tiff's counsel seemed to argue, precluded further
classification and the application of differing rules
among them. What was done, according to the
court, by the requirement of the provision in
question, was to make it a special rule applicable
only to those transporting oil; and the contention,
when all the necessary facts were shown, would
come back to the question as to whether or not such
classification was based upon some real difference in
the business, or was arbitrary and capricious merely.
The court could not say, as the cause was presented
to it, that the business of piping oil partly for the
public and partly for the owner of the line, did not
differ so substantially from the business of so trans-

266 The Supreme Court of Texas

porting the other things as to furnish reason for
the application of different rules to them.

In Lively vs. Missouri, Kansas & Texas Railway
Company of Texas, 1 the court held that where the
assessment of the intangible assets of a corporation
was fixed at their full market value, while the value
of all other property in the county was assessed at
two-thirds of its actual value, the corporation was
denied uniform taxation secured to it by the Con-
stitution, as also the equal protection of the laws
guaranteed by the Fourteenth Amendment to the
Constitution of the United States ; and the fact that
such corporation was not required to pay more taxes
than it should, because the property was not taxed
beyond its true value, did not satisfy its constitu-
tional right to have all others owning property in
the same territory, and subject to like taxation, bear
their equal proportion of the burden of taxation.

The court, after quoting Article 8, Section 1, of
the Constitution which declares that "All property
in this State, whether owned by natural persons or
corporations, other than municipal, shall be taxed
in proportion to its value, which shall be ascertained
as may be provided by law," says:

"The rule announced by that provision is 'equality
and uniformity.' To secure this 'uniform and equal'
taxation, the same sentence prescribes that the prop-
erty of all persons and corporations, other than
municipal, 'shall be taxed in proportion to its
value, which shall be ascertained as may be provided
by law.' This is a clearly expressed purpose, that the

1102 Texas, 545.

The Supreme Court of Texas 267

officers charged with the assessment of property
shall in the manner prescribed by law ascertain
its value. 'The value of the property is to be de-
termined by what it can be bought and sold for.'
. . . If it means full market value when applied
to the intangible assets of a railroad company, it
means the same thing when applied to land, horses,
etc. The standard of uniformity prescribed by the
Constitution being the value of the property, tax-
ation can not be in the same proportion to the value
of the property, unless the value of all property
is ascertained by the same standard. The value of
the intangible assets of appellee being fixed at their
full market value and the value of all other property
in Dallas County being assessed at 66 2-3 per cent of
its value, appellee was denied the right of an equal
and uniform taxation secured it by the Constitution
of the State. . . .

"It is evident that this was a deliberate scheme on
the part of the officers of Dallas County by which
the assessment was made at the proportion of its
value stated and there is nothing in the case to in-
dicate that there was any mistake on the part of the
officers. It was the deliberately adopted policy to
so discriminate between the different classes of
property in the assessment for taxation. It is not
necessary that the officers in so discriminating should
have intended to injure the appellee or other rail-
road companies. It is sufficient that by their action
they denied the appellee the equal protection of
the Constitution and laws of the State. The in-
tention with which the acts were done is of no
consequence. Such deliberate action on the part of

268 The Supreme Court of Texas

the officers charged with the enforcement of the law
must be held to be the act of the State and the ap-
pellee was entitled to relief against the enforcement
of the excessive assessment."

January 5, 1911, Associate Justice T. J. Brown
was appointed Chief Justice, succeeding Eeuben R.
Gaines, resigned, and on the same date William F.
Ramsay was appointed Associate Justice.

Associate Justice Frank A. Williams resigned
March 23, 1911, and on April 1, 1911, Joseph B.
Dibrell was appointed Associate Justice to fill the
vacancy.

William Franklin Ramsay was born in Bell
County, Texas, October 25, 1855. He was edu-
cated in the public schools, and, in 1876, grad-
uated from the literary department of Trinity
College. After his admission to the bar, he engaged
in practice at Cleburne, Texas, from July, 1877,
until January, 1908. In addition to his successful
law business, he engaged in the banking business
from the year 1900 to 1907. In 1884 he was elected
presidential elector. From January 20, 1907, to
January 1, 1908, he was chairman of the Penitent-
iary Board of Texas, and from January 1, 1908, to
January 5, 1911, a justice of the Court of Criminal
Appeals of Texas. He resigned the last named posi-
tion to become a candidate for Governor against
O. B. Colquitt, by whom he was defeated. At the
close of that campaign Judge Ramsay resumed the
practice of law in Austin. In the summer of 1916
he was appointed Federal reserve agent for the
Federal Reserve Bank at Dallas, Texas.

J. B. Dibrell was born in Kentucky. His parents

The Supreme Court or Texas 269

removed to Texas when he was two years old. His
youth was spent on a farm, and he was edu-
cated in the common schools of the State. There-
after he attended college in Virginia, and, in 1883,
graduated with the degree of B. A. He was ad-
mitted to the bar at Seguin in 1883, where he suc-
cessfully engaged in practising law. He was a mem-
ber of the State Senate in 1894, and was re-elected to
that position in 1898. In 1900 he was an unsuccess-
ful candidate for Congress in the Seguin District.

In Church et al. vs. Bullock et al., 1 the court held
that the opening of exercises in public schools by
reading, without comment, a chapter from the Old
or New Testament, King James version, the re-
peating of the Lord's Prayer by students in con-
cert, and the singing of songs, mostly patriotic,
pupils being requested but not required to join in
such exercises, did not constitute such schools sects,
religious societies, or theological or religious semi-
naries, within the meaning of Article 1, Section 7,
of the Constitution; nor within the meaning of
Section 7, Article 7, Section 5, of that instrument;
nor did it convert such school rooms into places of
public worship within the purview of Article 1,
Section 6, of that instrument.

Quoting the provision of the Constitution of 1845
which declared that "All men have a natural and
indefeasible right to worship God according to the
dictates of their own conscience; no man shall be
compelled to attend, erect, or support any place
of public worship, or to maintain any ministry

1104 Texas.

270 The Supreme Court of Texas

against his own consent," the court observed that
the provision in our Constitution was a protest
against the policy of Mexico in establishing and
maintaining a church of State and compelling con-
formity thereto, and was intended to guard against
any such action in future. In the court's opinion,
the primary purpose of that provision of the Con-
stitution was to prevent the Legislature from in
any way compelling the attendance of any person
upon the worship of any particular church, or in
any manner, by taxation or otherwise, cause any
citizen to contribute to the support of "any place
of worship." As used in the Constitution the phrase,
"place of worship," says the court, means a place
where a number of persons meet together for the
purpose of worshipping God; that the worship was
not prohibited in any place, but that the spirit of
the Constitution would include any place at which
the worship might be indulged in so continuously
and in such a manner as to give it the character of
"a place of worship," and that buildings and in-
stitutions erected and maintained by the Sate could
not be used for such purposes. The court declined
to undertake the announcement of any rule as to
what would constitute "a place of worship," which
necessarily depended upon the facts of each case,
and therefore confined itself to the decision of the
question as to whether the evidence in the case con-
sidered showed that the exercises engaged in by the
teachers of the Corsicana school constituted the
school building "a place of worship" within the
meaning of the Constitution.
"To hold that the offering of prayers," says the

The Supreme Court of Texas 271

court, "either by the repetition of the Lord's Prayer
or otherwise, the singing of songs, whether de-
votional or not, and the reading of the Bible, make
the place where such is done a place of worship,
would produce intolerable results. The House of
Representatives and the Senate of the State Legisla-
ture each elect a chaplain, who, during the session,
daily offer prayers to Almighty God in behalf of the
State and in the most express manner invoke the
supervision and oversight of God for the lawmakers.
In the chapel of the State University building, a
religious service consisting of singing songs, reading
portions of the Bible, with prayers and addresses by
ministers and others, is held each day. The Young
Men's Christian Association hold their services in
that building each Lord's day, and the Young
"Women's Christian Association has a like service in
another public building. At the Blind Institute on
each Lord's day prayers are offered, songs are sung,
Sunday School is taught and addresses made to the
children with regard to religious matters. Devout
persons visit our prisons and offer prayers for those
who are confined. An annual appropriation is made
for the chaplain for the State penitentiary; in fact,
Christianity is so interwoven with the web and woof
of the State government that to sustain the con-
tention that the Constitution prohibits reading the
Bible, offering prayers, or singing songs of a re-
ligious character in any public building of the
government, would produce a condition bordering
upon moral anarchy."

272 The Supreme Court of Texas

In the case of State vs. Duke, 1 the court held that
a bona fide licensed club for purposes permitted or
sanctioned by law, situated in a locality where
liquors may be sold, could supply liquors to its mem-
bers as a mere incident to its purpose, and not for
profit, where purchased with club funds and paid
for by members who order it as served. The opinion
by Associate Justice Ramsay contains a discussion of
many authorities bearing upon the issues involved in
the decision.

Associate Justice William F. Ramsay resigned
in March, 1912, to take effect April 1, 1912, and
Nelson Phillips was appointed Associate Justice
on March 26, 1912, to fill the vacancy, qualifying
on April 3, 1912. He was elected to the position at
the ensuing November election.

At the November election, 1912, "William E. Haw-
kins was elected Associate Justice to succeed Justice
Dibrell, and in November, 1916, was re-elected to
that position.

On the death of Chief Justice Brown, in May,
1915, Justice Phillips was appointed Chief Justice,
and, at the ensuing 1916 election, was elected to that
position.

In May, 1915, J. E. Yantis was appointed Associate
Justice to fill the vacancy caused by the promotion
of Justice Phillips. In November, 1916, Justice
Tantis was elected Associate Justice.

Nelson Phillips was born in Jefferson, Texas,
May 23, 1873. His preparatory education was
acquired in the public schools of his native county.

U04 Texas, 35S.

The Supreme Court or Texas 273

This he supplemented by a two years' course in
Bingham School, Mehane, North Carolina. After
the completion of his studies at that institution,
he devoted himself for many months to the study of
law. Thereafter he entered the law office of T. S.
Smith, at Hillsboro, Texas, where he continued his
professional studies until 1895, when he was ad-
mitted to the bar, and formed a law partnership
with Mr. Smith. After engaging successfully in the
practice at Hillsboro for ten years, in 1905 he was
appointed District Judge of the Eighteenth Judicial
District. Thereafter he removed to Dallas, Texas,
where he enjoyed an extensive and remunerative law
practice until he was appointed Associate Justice of
the Supreme Court.

In a quiet and dignified way, Justice Phillips has
taken prominent part in the political issues of the
day. In 1910 he served creditably as Chairman of
the Democratic State Convention. He is an able
judge, a forceful and charming speaker, and a most
companionable man.

William E. Hawkins was born at Greenwood,
Caddo Parish, Louisiana, September 26, 1863. His
father, the Eeverend Samuel J. Hawkins, was a na-
tive of Tennessee, a distinguished minister of the
Methodist Episcopal Church, South, who in 1866 or-
ganized the North Texas Conference, as Trinity
Conference, at Sulphur Springs, Texas, and was
presiding elder of the Sulphur Springs District, as-
sociate editor of the Texas Christian Advocate, and
curator of the Southwestern University at George-
town, Texas, at the time of his death at Sulphur
Springs, in 1888. Judge Hawkins' mother, Emme-

274 The Supreme Court of Texas

line (Burk) Hawkins, who was born in Ohio, of
Virginia parentage, survives her distinguished hus-
band, and now resides at Austin, Texas, with her son.
Judge Hawkins acquired his education in the vari-
ous schools of Texas, his father's calling necessitat-
ing frequent changes in the family residence, while
his collegiate course was commenced in the Univer-
sity of Louisiana (now Tullane University), at New
Orleans, and completed in the Southwestern Univer-
sity at Georgetown, Texas, which he attended for two
years. Thereafter he taught school in Dallas County,
and later in the city of Dallas. Because of his finan-
cial inability to attend the law department of the
University of Texas, he studied law under the pre-
ceptorship and in the offices of Shepard & Miller,
of Dallas, a firm composed of Seth Shepard, late
Chief Justice of the United States Court of Appeals,
Washington, D. C, and the late T. S. Miller. Fol-
lowing this excellent professional training, Judge
Hawkins was admitted to the bar at Dallas in 1887,
and entered the practice in that city as a member of
the firm of McKamay & Hawkins, the senior mem-
ber of the firm being W. C. McKamay, afterwards
State Senator. Subsequently Judge Hawkins formed
a partnership with his brother, S. B. Hawkins, under
the firm name of Hawkins & Hawkins, and at the
death of the latter, in Coryell County, Texas, he as-
sociated himself in the practice at Dallas, with John
R. and C. P. Haynes, under the firm name of Hawk-
ins & Haynes. He continued his connection with
this firm until 1905, when he was appointed First
Assistant Attorney-General, under Attorney-General
R. V. Davidson, in which position he served with

The Supreme Court op Texas 275

distinction until December 31, 1909, when he re-
signed. Shortly thereafter he was appointed State
Commissioner of Insurance and Banking, serving
until July, 1910, when he removed to Brownsville,
Texas, where he was associated in the practice with
Frank C. Pierce, under the firm name of Hawkins &
Pierce. In July, 1912, while a citizen of Browns-
ville, Judge Hawkins received the Democratic nom-
ination for the office of Associate Justice of the Su-
preme Court of Texas, for an unexpired term of
two years, by a majority exceeding 89,000 votes. A
feature of his nomination was the remarkable cir-
cumstance that he received substantial majorities
in every section of the State, with the exception of
a few counties. Elected at the ensuing election, he
qualified on January 7, 1913. In 1914 he was nom-
inated without opposition for the office of Associate
Justice of the Supreme Court, for the regular term
of six years, leading the Democratic ticket by more
than 5,000 votes, receiving the largest majority ever
given any candidate in Texas for any office, and was
elected at the ensuing election.

Justice Hawkins is one of the ablest judges who
has served upon the Supreme Court of Texas in
recent years. The numerous opinions written by
him disclose the superior judicial attainments, clear
analysis, careful and painstaking research, forceful,
convincing reasoning, and mature judgment which
have characterized the learning of the greatest jur-
ists who have served in that exalted tribunal.

"Hon. W.E.Hawkins, Associate Justice of the Su-
preme Court of Texas," says a capable biographer, 1

iHistory of Texas and Texans, Vol. 4, p. 3119.

276 The Supreme Court of Texas

"is a worthy representative of the dignity and great-
ness of the State in the domain of the law which he
has honored for twenty-seven years. He comes of a
family whose members have long been distinguished
at the bar and on the bench, especially in Tennessee,
where an uncle, Alvin Hawkins, served three terms
as a member of the Supreme Court, and later was
Governor of the State; another uncle, Albert GK
Hawkins, was for many years chancellor of the
district, including Carroll County, Tennessee, while
a third uncle, Jo Hawkins, was Circuit Judge, and
for many years a practitioner at Huntington, Car-
roll County, Tennessee."

The case of Mabee vs. McDonald, 1 sustaining the
validity of a personal judgment upon statutory ci-
tation by publication against an absent defendant,
and involving the principle announced in Pennoyer
vs. Nef, 2 contains a notable example of the research
and forceful reasoning of Justice Hawkins. His
dissenting opinion in St. Louis & Southwestern
'Railway vs. Grifin,* holding the "blacklisting"
statute unconstitutional; as well as his dissenting
opinion in Ex Parte Mitchell* sustaining the con-
stitutionality of the "pool-hall local option" stat-
ute, are noteworthy examples of the judicial labors
of Justice Hawkins. In Volumes Nos. 105, 106,
and 107 of the official Supreme Court Reports are
numerous opinions by Justice Hawkins in impor-
tant cases involving statutory and constitutional

U75 S. W. Reporter, 1052.
295 U. S., 714.
8171 S. W. Reporter, 708.
*177 S. W. Reporter, 954.

The Supreme Court of Texas 277

questions, which reflect credit upon his professional
attainments.

Judge J. E. Tantis was born in Hickman County,
Kentucky. His parents removed to Texas when he
was fifteen years old, locating in Collins County,
where his early education was acquired. He ener-
getically devoted himself to the fulfillment of his
ambition to become a great lawyer. After his ad-
mission to the bar at McKinney, Texas, he located
at Sweetwater, Nolan County, Texas, where he ac-
quired an extensive and remunerative law practise.
In 1893 he removed to Waco, Texas, where he suc-
cessfully engaged in the practice of law for twenty
years. In 1896 he was elected to the State Senate
from the Eleventh Senatorial District, in which he
served with distinction until the close of his term.
Thereafter he was appointed Assistant Attorney-
General, in which position he served with ability.
He is a strong advocate, distinguished jurist and a
leading citizen of the State, while his enviable
record as a Justice of the Supreme Court demon-
strates the wisdom of his selection by the Governor
in the first instance, and his election by the people
in the second. He enjoys the merited reputation
of being one of the ablest lawyers of Central Texas,
justly noted for the strength of its bar.

In the case of Eppstein vs. State, 1 the court in an
opinion by Justice Dibrell, construes the act of the
30th Legislature, providing that wholesale liquor
dealers or distributors of intoxicating liquors, shall
make a quarterly report to the Comptroller of

1144 S. W. Eeporter, 145, 146.

278 The Supeeme Court of Texas

Public Accounts, showing the gross amount col-
lected and uncollected from any and all sales made
within the State during the last preceding quarter,
and at the time of making said report shall pay an
occupation tax for the quarter beginning on said
date, equal to one-half of one per cent, of the gross
receipts from said sales as shown by said report.

In holding that the tax was on gross sales, whether
collected or not, the court says :

"No issue of fact was presented, and the sole
question of law is whether the wholesale dealer
in intoxicating liquors is required under the act
of 1907, to pay the occupation tax of one-half of one
per cent, on the gross sales of his business in this
State, whether collected or uncollected, during the
quarter for which he is to pay, or whether he is re-
quired only to pay on such amount of gross sales
as he may collect during the quarter."

The court held that any other construction of the
law would result in its nullification as to sales made
for other than cash, thus enabling dealers and dis-
tributers on a credit basis to escape its provisions;
that the case called for the application of that indis-
putable rule of statutory construction, that where
an act was fairly susceptible of two constructions,
one of which would render it inoperative, and the
other give it full force and effect, the latter should
be adopted.

The case of Railroad Commission of Texas et al.
vs. Galveston Chamber of Commerce? contains an
interesting discussion of what is characterized the
"Galveston-Houston differential freight rate," of

1145 S. W. Reporter, 573.

The Stjpeeme Court op Texas 279

which Galveston complained as giving Houston an
unfair advantage in traffic over that enjoyed by the
latter, as the result of its application.

In this case the court held that the act creating
a railroad commission and making it an independent
department of government, with jurisdiction and
power to represent the interest of the people as
well as the railroads, should be liberally interpreted
to effectuate its purpose; that provisions for ap-
peals to the courts from decisions of the Commis-
sion, placing the burden of proof on trials by the
Commission, upon plaintiff to show by clear and sat-
isfactory evidence that the rates complained of were
unreasonable and unjust, evidenced the legislative
intent to guard the Railroad Commission from im-
proper interference, and to provide that the courts
should regard its actions within the limits of its
powers, as the result of a purpose to do justice, so
that the right of courts to set aside decisions of the
Commission must be limited to cases in which the
evidence leaves no reasonable doubt that the rate
or rule is unjust and unreasonable. The court be-
lieved that under such conditions it was not con-
cerned so much with any inquiry into the motives
of the Commission, as with the results of its action
and its effects on the rights of shippers.

Presaging the opinion, Justice Brown states that
the suit was instituted by plaintiffs in error under
Art. 4565 of the Revised Statutes, providing that
if any railroad company or other party at interest
be dissatisfied with the decision of any rate, classi-
fication, rule, charge, act, or regulation adopted by
the Commission, such company may file a petition

280 The Supreme Court or Texas

setting forth the cause or causes of its objection to
such decision, in a court of competent jurisdiction
in Travis County, Texas, against said Commission
as defendant, and that such action shall have pre-
cedence over all other causes on the docket of said
court except others of like nature, and be tried and
determined as other civil causes in said court, and
providing that either party may appeal to the ap-
pellate court having jurisdiction of said cause, and
said appeal shall be at once returnable to said ap-
pellate court, at either of its terms, and that said
action so appealed shall have precedence in that
court of cases of a different character therein pend-
ing, provided, that if the court be then in session at
the time said right of action accrues, the suit may
be filed during said term and stand ready for trial
after ten days' notice. He also directed attention
to Article 4566, prescribing that in all trials under
the article formerly quoted, the burden of proof
should rest upon the plaintiff, who must show by
clear and satisfactory evidence that the rates, regu-
lations, orders, classifications, acts, or charges com-
plained of are unreasonable and unjust to it or them.
After quoting from voluminous findings of facts by
the trial court and the Court of Civil Appeals, which
were hardly as clear as they should be, the Supreme
Court in an opinion by Chief Justice Brown, ex-
presses the difficulty experienced in reviewing the
action of the Honorable Court of Civil Appeals, as
its able and exhaustive opinion discussed in a general
way facts and principles without definitely stating
the facts or the grounds upon which judgment
rested. Under this state of affairs the court con-

The Supreme Court of Texas 281

eluded that the best way to review the case was
to address itself to what it conceived the principal
contentions made by the plaintiff against the rates
complained of.

The court found no basis in fact for the con-
tention that the differential between Houston and
Galveston was unjust or unreasonable to the people
of Galveston. It is not claimed, says the court, that
the Commission was without authority to prescribe
the differential rate; that the principal ground of
complaint was the application of the differential
to the shipment of cotton from the interior to Gal-
veston.

"Practically all cotton," says the court, "that goes
to Houston finally goes to Galveston, and is from
there shipped to some other part of the United
States or to some foreign country. Let us illustrate
the practical effect of the differential by comparing
the movement of one shipment by a buyer of each
city thus : A, of Houston, ships 100 bales of cotton
from some interior point to that city at the rate of
49 cents per 100 pounds. It may be unloaded and
compressed. He then ships it to Galveston, paying
6 cents per 100 pounds, making 55 cents per 100
pounds as the total cost of shipment from the
initial point. B, of Galveston, purchases in the same
market 100 bales of cotton and ship it to Gal-
veston, direct, at 55 cents per 100 pounds. Where
is B injured by this transaction? Each party pays
the same rate for the same service. Suppose that
A should start his 100 bales to Liverpool; he may
unload at Houston or other compress point, and,
after compressing, reship on his railroad bill of

282 The Supreme Coubt of Texas

lading, which calls for delivery to a ship bound for
a foreign port. The railroad company must pay
for compressing and wharfage at Galveston, so that
delivery may be made at shipside in accordance
with the contract. For this A pays 55 cents per
100 pounds, neither more nor less. If B should start
his 100 bales to Liverpool likewise, and takes a bill
of lading for delivery to the ship, for which he
pays 55 cents per 100 pounds, and no more, he may
unload at Houston or elsewhere and recompress,
and then resume the journey to Liverpool. The
railroad company pays for compressing and de-
livery to shipside the same as for A. Both place
their cotton on shipboard at the same cost. Wherein
is the discrimination? If B should ship his cotton
to Galveston, to be delivered to his or some other
warehouse, then the railroad company discharges
its contract ; and when B wishes to forward the cot-
ton to Liverpool he must deliver it to the ship at his
own cost. If A should ship his cotton to a cotton
firm at Galveston, to be there stored, when he
should resume its shipment to Liverpool, he must
pay for delivery at the ship the same as B, each
man pays the same rate for a like service."

The court observed that it seemed to be in the
mind of attorneys for defendants in error that
Galveston was entitled by law to some favor because
of its location and water transportation. The fact
that it enjoys those advantages, in the court's view
of the matter, should not cause adverse discrimina-
tion nor favorable indulgence of that port. The
court conceived that the benefit of access to the high
seas belongs to the people of all the states, and may

The Supreme Cotjbt op Texas 283

be, and no doubt has been, used by the Commission
for the general good. The bayou affords some com-
petition with the railroads between Houston and
Galveston, and, if it were sufficient, might force the
railroads to seek lower rates to Galveston; but Gal-
veston would have no right to demand lower rates
on the railroads. The question of competition and
its influence on rates was and is peculiarly for the
Commission, and for that reason the court did not
feel called upon to discuss that phase of the case.

Addressing itself to the claim that, as applied
to the Commodity Tariff, the differential was unjust
to the people of Galveston, the court declared that
the facts found by the trial court and the Court
of Civil Appeals, and clearly illustrated by the
learned judge who wrote the opinion of the Court of
Civil Appeals, show that the rate per 100 pounds
on freight leaving Houston is so regulated that for
the first 58 miles from Houston the rate is 30 cents per
hundred pounds, while for the first 58 miles from Gal-
veston the rate is 20 cents. The rate on freight from
Galveston gradually increases in its relative propor-
tion to that fixed for Houston until, at the distance of
263 miles, each rate reaches 80 Gents per 100 pounds,
beyond which distance nothing is added to the Hous-
ton rate; but the rate from Galveston is increased
until 294 miles is reached when the rate for Galves-
ton is equal to the Houston rate, plus the differential.

"These rates," says the court, "apply to shipment
from and to the two cities. It is apparent that Gal-
veston has the advantage in rates for 263 miles, and
is at a slight disadvantage for about 30 miles. The
judge of the trial court found that the lower rates

284 The Supreme Court of Texas

to and from Galveston applied to the territory in
which its merchants and other business men do their
largest business, but that the lower rate to and from
Houston applied to the territory in which its mer-
chants do the least business. From this statement of
facts, it does not appear that the plaintiffs, or any
interest in the city of Galveston, has suffered injury.

"The Commission had authority to prescribe the
rates, and this court will not disturb them, except
upon clear and satisfactory evidence that they are
unjust and unreasonable to the complainants. It is
not sufficient that we can see no reason for the dif-
ferences; we must be able to see a valid reason
why the rates should not exist in that form. . . .
"With great respect for the learned judge who de-
livered the opinion of the Court of Civil Appeals,
we repeat that courts cannot set aside rates made
hy the Commission, because the reason for an ap-
parent discrimination is not evident ; the reason why
it should not be made by the Commission must be
made clear beyond a reasonable doubt, to justify the
courts in setting aside rates which the law author-
izes that body to make. . . .

"The findings of facts by the trial court have not
been objected to. Those facts, in our opinion, wholly
fail to meet the requirements of Art. 4566, Eevised
Statutes, that the evidence must show the rate to
be unreasonable and unjust beyond a reasonable
doubt, and, as a matter of law, the plaintiff failed
to show any right to a judgment. Therefore the
trial court correctly rendered judgment refusing
to interfere with the rates."

The Supreme Court of Texas 285

In Nash Hardware Company vs. Morris, 1 Chief
Justice Brown discusses the issue as to whether a
certain act was a proper exercise of the police reg-
ulatory power by the legislative department — great-
est of powers exercised by that or any other de-
partment of government, and the least understood
of any connected with constitutional government.

"In effect," says the court, "the contention is
.that the act is not a proper exercise of the police
regulatory power. We regard this as the question in
the case; and we will assume that the law is void,
if not a reasonable exercise of the police power of
the State, which is defined thus: 'The private
rights of the individual, apart from a few statutory
rights, which, when compared with the whole body
of private rights, are insignificant in number, do
not rest upon the mandate of the municipal law as
a source. They belong to man in a state of nature ;
they are natural rights, rights recognized and exist-
ing in the law of reason. But the individual, in a
state of nature, finds in the enjoyment of his own
rights that he transgresses the rights of others.
Nature wars upon nature, when subjected to no
spiritual or moral restraint. The object of govern-
ment is to impose that degree of restraint upon
human actions which is necessary to the uniform
and reasonable conservation of and enjoyment of
private rights. Government and municipal law pro-
tect and develop, rather than create, private rights.
The conservation of private rights is attained by
the imposition of a wholesale restraint upon their
exercise, such a restraint as will prevent the in-

H46 S. W. Reporter, 874.

286 The Supreme Court of Texas

fliction of injury upon others in the enjoyment of
them ; it involves a provision of means for enforcing
the legal maxim which enunciates the fundamental
rule of both the human and the natural law: 'Sic
utere tuo, ut alienum non laedas.' The power of
the government to impose this restraint is called
'police power'." 1

"We add the concise and comprehensive definition
of Mr. Cooley, in his work on Constitutional Limi-
tations : 2

" 'The police power ©f a state, in a comprehensive
sense, embraces its whole system of internal regula-
tion, by which the statute seeks, not only to preserve
the public order and to prevent offenses against the
state, but also to establish for the intercourse of
citizens with citizens, those rules of good manners
and good neighborhood which are calculated to pre-
vent a conflict of rights, and insure to each the
uninterrupted enjoyment of his own, so far as is
reasonably consistent with a like enjoyment of rights
by others.' "

While the definitions of police power as quoted
and approved by' the court are sufficient for or-
dinary requirements, it would be expecting too much
to indulge the hope that they have proven satis-
factory to several distinguished judges and prac-
titioners, in this and other states, who have often
declared that "police power" is a mere designation
of a method in high favor with those who, having
determined to violate the constitution, are in need
of some plausible excuse for that action.

iTiedman's Lim. of Police Power, Sec. 1.
"Fifth Edition, 706.

The Supreme Court of Texas 287

In Cox vs. Robinson, 1 is an interesting historical
outline by Chief Justice Phillips of the origin of
the State's reservation of mineral rights in the
sale of its public lands; discussion of rules for the
construction of constitutions, and the value of re-
sort to extrinsic aids in such construction.

As stated by the court, this action was a suit for
original mandamus to compel the issuance to the
relator by the Commissioner of the General Land
Office of an unconditional patent to 80 acres out of
a section of land belonging to the public free school
fund, situated in Culberson county and being in the
"Pacific Reservation," referred to in Article 3498a,
Revised Statutes of 1895.

The question involved in the case was the constitu-
tionality of Article 2498a, it being contended by rela-
tor that upon the adoption of Section 7, Art. 14 of
the Constitution, the State lost its power to enact
laws providing for the reservation of minerals in the
conveyance of its public schools, university and asy-
lum lands, and other public lands referred to in Ar-
ticle 3498a; that Article 3498a, declaring that any
sale of such lands, other than as mining claims, as
provided in other articles of the title, should be un-
derstood to be with the reservation of the minerals
thereon, is accordingly unconstitutional; and that
therefore relator is entitled to an unconditional
patent.

The court, after citing Section 7 of Article 14 of
the Constitution, in which the State of Texas re-
leases to the owners of the soil all mines and min-

»150 S. Wt Reporter, 1149.

288 The Supreme Court of Texas

erals that may be on the same, subject to taxation as
other property, says:

"If this provision was intended by the framers
of the Constitution and the people who adopted it
as a grant by the State to both the then and future
owners of the soil of all mines and minerals that
might be in it, the State must be held to have been
without authority to in any wise further control
their disposition; and if so construed, this section
of the Constitution amounts to a limitation upon
the power of the Legislature to enact laws of the
character of the statute under review. If, however,
it was curative in its nature and retrospective in
its effect, and intended as an extinguishment of the
rights of the State in only those mines and minerals
in soil owned at the time of its adoption, the title
to the State to all other mines and mineral in lands
of the public domain remained unimpaired and un-
affected; and its authority to provide by law that
their reservation should be made in future con-
veyances of such land must be recognized.

"When it is recalled that the development of the
mineral resources of Texas is still in a state of
infancy; that even their meagre disclosure to this
time furnish evidence that in them repose a wealth
whose rich extent in the day of its full ascertainment
may give new character to the State's resources and
materially transform its industrial life, and that
there yet remains undisposed of in the hands of
the State an immense public domain dedicated to
the free education of its youth, whose mineral value
is commonly estimated at a large amount and will
endure for their benefit, should this legislation be

The Supreme Court op Texas 289

upheld, but of which they will be deprived, to the
benefit of purchasers and the encouragement of set-
tlement, if it be held invalid; and that we are deal-
ing, therefore, with a question, not only of present
concern, but vital in its bearing upon the future of
the State, whether viewed with relation to its educa-
tional interests or from the standpoint of those who
shall hereafter come to inhabit these lands and com-
pose its citizenship — it will be appreciated that the
decision as to where, under the Constitution, the
title to these minerals rest is of such consequence as
to challenge the most serious consideration and con-
strain the court to a solicitous care for the accuracy
of its conclusions. . . .

"It can with some reason be contended that the
meaning of the phrase in the provision, 'hereby re-
leases to the owner or owners of the soil/ is notj
plain; and upon this account we are authorized to
make use of whatever proper information will
help to make it certain."

In support of its view that a better understanding
of the provision would result from a clearer view
of its history, the court presents in the opinion an
interesting and instructive historical outline of the
provision under consideration, showing that it is
first found in the Constitution of 1866; that it was
repeated with but slight variation of language in
the Constitution of 1869. As found in those consti-
tutions the provision is as follows : "That the State
of Texas hereby releases to the owner of the soil all
mines and mineral substance, that may be on the
same, subject to such uniform rate of taxation, as
the Legislature may impose. All lands along the

290 The Supbeme Court or Texas

Gulf coast of the State, not now patented, or ap-
propriated by locations under valid land certificates,
are reserved from location or appropriation in any-
other manner by private individuals than as the
Legislature may direct."

In view of the circumstance that the present pro-
vision had its origin in the Constitution of i866,
and is substantially the language of the provision of
that instrument, the court considered that no surer
method of determining its meaning could be em-
ployed than to ascertain with what intent the fram-
ers of the Constitution of 1866 adopted the original
provision. To that end the prior state of the law and
the circumstances which appear, with some cer-
tainty, to have influenced their action, were reviewed
by the court.

The court observed that by the Mexican law all
mines, and by the common law all royal mines—
that is, those of gold and silver — belonged to the
sovereign ; and their metals or minerals did not pass
by the ordinary grant of the land, without express
words of designation; that upon the establishment
of the Republic of Texas, among the earlier acts of
its Congress was that of June 3, 1837, under which
in its grants of land, there was secured to the Re-
public, by express reservation, the same rights in
all minerals that by the common law was reserved
to the king in respect to royal mines, the language of
the act mentioned being as follows : "Provided that
no lands granted by this government shall be located
on salt springs, gold or silver mines, copper or lead,
or other minerals, on any island of the Republic."

The Supreme Cotjet of Texas 291

This act was construed in Cowan vs. Hardeman, 1
as disclosing the intention and purpose of the Leg-
islature, says the court, to reserve to the Republic
the islands and salt springs, gold and silver mines,
copper and lead, and other minerals, as corporeal
hereditaments out of the public domain; and that
thus, while the mineral resources of the country that
were known to exist, or that might afterwards be
developed, were thereby secured to the government,
no embarrassment was placed in the way of the
citizen in acquiring the fee in the quantum of land
to which his certificate or scrip entitled him. In the
act of 1840, adopting the common law and repealing
certain Mexican laws, says the court, in the re-
pealing section there were expressly excepted all
laws relating to "the reservation of islands and
lands, and also of salt lakes, licks and salt springs,
mines and minerals of every description." From
this the court was convinced that in the very be-
ginning of the State's history, at the very outset of
its career, a fixed purpose and established policy
to reserve its minerals from the appropriation of
the land, evidencing, as Judge Wheeler said in
Cowan vs. Hardeman, "the solicitude of the Legis-
lature to guard the interest of the State" in them.

In his painstaking investigation of the legislative
history of a famous salt lake in Hidalgo county,
known as El Sal del Bey, Justice Phillips shows
that the provision was not embodied in the Consti-
tution of 1866, but was a mere ordinance enacted for
the purpose of validating the title to the lake men-
tioned.

126 Texas, 217.

292 The Supreme Court of Texas

"Bearing in mind," says Justice Phillips, "that
the ordinances enacted by the convention were
valid upon their adoption, without ratification by the
people, and that the convention , devoted this power
that it thus possessed to the relief of the people and
property of the State in many other respects, it is
not difficult to credit it with a purpose to quiet
the owners of land, which the State had theretofore
granted, in their title to whatever minerals might
be in the soil by 'releasing' to such owners the
previous rights of the State, recently declared to ex-
ist by the decision rendered in Cowan vs. Hardeman.
But considering the membership of that convention
and the conditions under which they performed
their labors, it is hard to believe that they intended,
through the office merely of an ordinance, by an
independent act of their own, without the sanction
of the people, to make a grant so broad and gen-
eral, in respect to lands yet ungranted, as to deprive
the State of all power to thereafter conserve for
a sacred use a resource held in such value as to have
been the subject of a constant and jealous care.
It must be remembered that it was not a time for
a measure so free in its disposal of the unguarded
public domain, and so generous in its provisions for
mere prospective purchasers. Whatever the appeal
of equitable considerations in respect to lands with
the title to which the State had parted, all things
urged a prudent husbandry of its resources rather
than a liberal disposition of them. The State had
just passed through a ruthless and ruinous war.
Its devastation lay over the land, and the gloom of
its tragic close pervaded the people. Their minds

The Supreme Court op Texas 293

turned naturally to rehabilitation and repair, where
they faced the stern necessity of a frugal use of
whatever had survived waste and destruction. The
work of the convention was given largely to such
measures, and in that provident spirit, we may be
assured, that the hard conditions of the time de-
manded. . . .

"A full consideration of the question in all of its
phases has brought us to the conclusion that it was
not the intention of the framers of the original pro-
vision in 1866, or of the people who adopted the
present Constitution in 1876, to give these terms
a prospective operation and effect, so as to deny to
the Legislature the power to provide for the reserva-
tion of minerals in future grants of the school and
other public lands if, in their wisdom and the ex-
ercise of their province, such reservation was in
accord with a sound public policy and the best in-
terests of the State. . . ."

In Grigsby vs. Reib et al, 1 the legal status of mar-
riage agreements and contracts as clearly defined
in the opinion of the court rendered by Chief Jus-
tice Brown, will prove instructive and entertaining
to the general reader. In holding that the marriage
contract is a civil contract, in that a church ordi-
nance or rite is not necessary to its validity; that
marriage may be contracted without complying
with the statutes, and without any ceremony by an
officer or minister of the gospel ; that marriage may
be lawfully made without license or ceremony, when
with the consent of both parties they professedly

1153 S. W. Keporter, 1124.

294 The Supkeme Coubt of Texas

cohabit and maintain the relation of husband and
wife, Justice Brown says :

"Marriage was not originated by human law.
When God created Eve, she was a wife to Adam;
they then and there occupied the status of husband
to wife and wife to husband. When God turned
the first pair out of the garden, He gave the com-
mand: 'Multiply and replenish (people) the earth'
— which was enjoined upon their explusion from the
garden. When Noah was selected for salvation from
the flood, he and his wife and three sons and their
wives were placed in the Ark; and, when the flood
waters had subsided and the families came forth,
it was Noah and his wife and each son and his wife,
and God repeated to them the command: 'Multiply.'
All of the duties and obligations that have existed at
any time between husband and wife existed between
those husbands and wives before civil government
was formed. The truth is that civil government has
grown out of marriage; marriage by cohabitation,
not by contract, which created homes, and popula-
tion, and society, from which government became
necessary to settle differences in matters of private
interest, to protect the weak, and to conserve the
moral forces of society to the support of religion
and free government. In what respect does the
contract of marriage of B. and C. contribute to their
happiness? How does that marriage benefit so-
ciety? It will contribute nothing to sustaining the
dignity of the State, nor add to its citizenship. Such
a contract, if it be regarded as such, is worse than a
nudum pactum, for it is without consideration or
obligation to or from either party. Such life is in

The Supreme Court op Texas 295

defiance of the command of God, and in disregard
of every obligation to society and the State. Such
transaction has but one element of a contract: Mut-
ual consent to do nothing for themselves, their coun-
try or their God. The abstract theory has had but
little influence in the determination of the causes,
except to confuse the judicial mind. Contract mar-
riages exist when the parties, for some pecuniary
or social advantages, have desecrated the sacred
status by their union; and such marriages often
furnish business to the divorce courts and scandals
to society.

"If the rule of law claimed in this case is not given
effect, it should be repudiated, because it is unsound
and inapplicable to present conditions, serving only
to confuse courts and juries. If it were put into
effect, as is sought to be done in this case, it would
open a wide door, with a strong invitation to per-
jury and fraud. It would be a menace to the heirs of
men like Grigsby, and make their estates the prey of
the bawd and the adventuress, with no possible safe-
guard; one party being dead, and no witness to the
contract nor publicity of marriage. One of the
parties to such contract might marry and raise a
family, and, dying without disclosing the former
marriage, the "common-law widow" could come
forward, claim to be the surviving wife, and thus
displace the woman who had borne the hardships
of wife and mother, brand the children as bastards,
and take the position as survivor with her rights in
the estate. A rule for the regulation of the sacred
rights of marriage and the rights of families that

296 The Supreme Court op Texas

makes such wrongs possible, should not be recognized
in civilized governments."

In Missouri, Kansas & Texas Railway Company of
Texas vs. State, 1 the court in an opinion by Chief
Justice Phillips, holds that what is commonly known
as the "Thirty-Minute Order" of the Texas Rail-
road Commission as applied to certain ' trains of
the plaintiff in error, which, according to its claim,
were interstate in character, and not subject to the
regulation, were subject to the same, notwithstand-
ing their interstate character. The trains sought to
be subjected to the order were through passenger
trains from St. Louis and Kansas City, Missouri, to
points in Texas, operated by the Missouri, Kansas &
Texas Railway Company to Denison, Texas, and
from there to destination by the plaintiff in error
under a contract with the company; it appearing
from the proof that a considerable portion of their
passenger traffic was interstate.

There was accordingly presented, said the court,
the simple question as to the power of the Railroad
Commission to provide and enforce a regulation of
this character as applied to trains employed in
interstate commerce by railway companies operating
in this State.

"While by the Federal Constitution Congress is
empowered to regulate commerce with foreign na-
tions and among the several states," says the court,
"there remains in the states the power, distinct from
any granted to the federal Government, to pre-
scribe, within constitutional limitations relative

1181 S. W. Keporter, 721.

The Supreme Court or Texas 297

rights and duties of persons and corporations within
their jurisdiction in the interest of the public con-
venience and for the public good. It is a power
still valid and effectual, though its exercise may
relate to subjects over which Congress possesses,
but has not exerted, authority. It cannot be sup-
posed that a sovereign state in the grant of the
rights and privileges accorded by its laws to rail-
way carriers is required to wholly surrender its
authority over them simply because they may en-
gage in interstate commerce. Nor is it to be assumed
that such rights and privileges are extended merely
for their benefit as interstate carriers, or only to
subserve the interest of those making use of them
for that character of traffic. There are certain
duties whose performance by the common carrier
in the state the police power may exact, notwith-
standing their employment in interstate commerce;
and that power is not nullified by the mere fact that
they are so employed. Its valid exercise in relation
to carriers engaged in such commerce, as well as
their instrumentalities so used, is dependent upon
other considerations ; and the principles which in the
particular case determine the question are well
established. . . . With the order producing no
conflict with any expression by Congress of its power
over the subject, is the state, through its adminis-
trative agency established for the regulation of
railroads operating within its limits, yet powerless
to require their maintenance of the schedules of
such of their trains as may have an interstate char-
acter, leaving those trains altogether free from any
proper regulation of that nature 1 ? We do not think

298 The Supreme Court or Texas

its authority is to be considered as so reduced. The
authority is very plainly not directed against inter-
state commerce. It is not an attempt to regulate
commerce. It has to do merely with the operation
of trains. It has no further object than to bring
about dispatch and certainty in their operation as
essentials of efficient service to the public. And
it seeks to do no more than require that kind of
operation merely within the limits of the state. The
effect of its observance upon commerce, whether
domestic or interstate, is purely incidental, since
as a consequence of its obedience commerce will be
effected as the result only of the ordinary opera-
tion of trains upon their schedule time. It is no
more of a regulation of commerce and in particular
is it no more of a burden upon or interference with
commerce in its effect, than familiar enactments
requiring competency of train operatives as a means
of affording safety to passengers and employes. It
will hardly be denied that, in the absence of action
by Congress, the police power of the state may be
validly exercised to promote the safe carriage of
passengers upon interstate trains. ... If so,
by what authority is the State, under a similar
condition, to be deprived of the exercise of its
rightful powers for the furtherance of their prompt
carriage by such trains'?

"So far as it may affect interstate commerce, the
order is a regulation in aid of commerce. It is dif-
ficult to conclude that a requirement whose natural
effect upon commerce is to facilitate its prompt
movement through the observance of train schedules
and connections constitutes an interference with

The Supreme Court of Texas 299

commerce, or in any just sense a burden upon it.
There being no legislation by Congress which ren-
ders inconsistent such action by the State, the order
of the Railroad Commission in such bearing as it
has upon interstate -commerce is accordingly a
regulation which the State had the full authority
to provide in the exercise of its sovereign powers,
under which its right to reasonably prescribe the
duties of railway companies within its limits is clear
and undoubted."

In Waples vs. Marrast, 1 the court in an opinion
by Chief Justice Phillips, held the Presidential
Primary Act of the Thirty-third Legislature 2 uncon-
stitutional in providing that the expenses of holding
such primaries should be paid out of funds in the
county treasury, which it held was violative of
Article 8, Section 3 of the Constitution.

In disposing of the contention that the act is
impracticable, unworkable if literally observed, and
deficient because of the omission to provide for the
nomination of the legal number of presidential
electors, the court held that such matters, if true,
did not affect the power of the Legislature to enact
the law. The court believed that the only serious
constitutional question involved in the act was the
requirement that the expenses of the primary elec-
tion should be borne by the public treasury of the
counties, presenting nakedly the question whether
it was within the power of the Legislature to devote
the public revenues of the State to the payment of
the primary election expenses of political parties.

1184 S. W. Keporter, 180.
^General Laws 1913, Chap. 46.

300 The Supreme Cotjet or Texas

The court observed that this was the first attempt in
the legislative history of the State, so far as it was
aware, to make the expense of a party election a
charge upon the public revenue.

"The funds possessed by the counties of the
State," says the court, "and available for the pay-
ment of the expenses of the primary election pro-
vided for by this act, are only those which are de-
rived by taxation. If the payment of such expenses
is, within the meaning- of the Constitution, 'a public
purpose,' the act is valid in its provision that it
shall be borne out of the public treasury of the
counties ; otherwise not.

"Taxes are burdens imposed for the support of the
government. They are laid as a means of providing
public revenue for public purposes. The sovereign
power of the State may be exercised in their levy
and collection only upon condition that they shall
be devoted to such purposes ; and no lawful tax can
be laid for any other purpose. Whenever they are
imposed for private purposes, as was said in Broad-
head vs. Millwaukee, 1 it ceases to be taxation and
becomes plunder. ... As the means provided
for the support of the government in its adminis-
trative duties and existing alone for that end, the
taxing power may be employed for no purpose save
that which in a true and just sense is related to the
performance by the State of its governmental office.
The appropriation of the public revenue is a legis-
lative power, and the Legislature necessarily must
be allowed a large discretion in determining to
what uses public money may be put. Subject to

119 Wisconsin, 670.

The Supreme Court or Texas 301

the constitutional limitation that the public revenue
shall be applied only to public purposes, to the
prudent husbandry of the Legislature as well as
its provident foresight has been committed the
public trust of making such use of it as will afford
the economical administration of the government
which both the letter and spirit of the Constitution
enjoin. The term 'public purpose' as used in this
relation is not, therefore, to be construed narrowly,
so as to deny the authority to the Legislature to
make such provision for the administration of the
government in its several branches and subdivisions
as will faithfully subserve the present and the
future interests of the people. The limitations im-
posed by the Constitution upon the power is, how-
ever, imperative. And it is essentially true that it
does not permit taxation for all purposes which in
a broad and general sense may be regarded as public,
but expressly confines its exercise to only those
public purposes which the State, as a government
invested with high and sovereign powers, but only
as a grant from the people and therefore to be used
solely for the common benefit of all of them, and
not as a paternal institution, may justly concern
itself, and to which for that reason, the public
revenues may be devoted. . . .

"General elections are essential to the public wel-
fare and are distinctly related to the discharge of
an important governmental duty, because it is only
by their means that the organic law may be amended
and elective officers be supplied for the vari-
ous administrative agencies of the State. But
is it any duty of the State to provide the people

302 The Supreme Court op Texas

nominees of political parties for elective offices of
the government? Is it in any just sense a concern
of the State, that those offices be filled by only the
nominees of political parties? And is there any
right dn the State to devote the revenues of the State
derived by taxation from the people at large in
aid of the purposes of such parties ?

"A political party is nothing more or less than a
body of men associated for the purpose of furnish-
ing and maintaining the prevalence of certain polit-
ical opinions or beliefs in the public policies of the
government. As rivals for popular favor they strive
at the general elections for the control of the agencies
of the government as a means of providing a course
for the government in accord with their political
principles and the administration of those agencies
by their own adherents. According to the sound-
ness of their principles and the wisdom ,of their
policies they serve a great purpose in the life of the
government. But the fact remains that the objects
of political organizations are intimate to those who
compose them. They do not concern the general
public. They directly interest, both in their con-
duct and in their success, only so much of the public
as are comprised in their membership, and then
only as members of the particular organization.
They perform no governmental function. They
constitute no general agency. The purpose of their
primary election is merely to enable them to furnish
their nominees as candidates for popular suffrage.
In the interest of fair methods and a fair expression
by their members of their preference in the selection
of their nominees, the State may regulate such

The Supreme Court op Texas 303

elections by proper laws, as it has done in our gen-
eral primary law, and as it was competent for the
Legislature to do by a proper act of the character
of the one here under review. But the payment of
the expenses of a purely party election is a different
matter. On principle, such expenses cannot be
differentiated from any other character of expense
incurred in carrying out a party object, since the
attainment of a party purpose — the election of its
nominees at the general election through the unified
vote of the party membership, is necessarily the
prime object of a party primary.

"The great powers of the State — and the taxing
power is the one to be always the most carefully
guarded — cannot be used, in our opinion, in aid
of any political party or to promote the purposes
of all political parties. They are no more to be
made the objects of governmental bounty or favor
than any other class of public organization into
which groups of citizens may form themselves.
Expenses incurred in the furtherance of their ob-
jects can no more be defrayed out of the public
treasury than the expenses of other associations
of individuals. If it is constitutional to use the
public revenues to pay the cost of their primary
elections, it would likewise be constitutional to pay
the cost of their candidates' campaigns. If the
constitutional barrier is removed in the one case, it
cannot be restored in the other; but it will have
to be admitted that any and all kinds of expense of
political parties may be lawfully imposed as a part
of the public burden of taxation.

"For a stronger constitutional reason than would

304 The Supreme Cotjrt of Texas

apply to other kinds of public organizations is it
the clear duty of the State to withhold the use of its
public revenues as an aid to political parties, and
particularly as an aid in the holding of their prim-
ary elections. The object of such parties is the
political control of the government; and we regard
it as a fundamentally sound proposition that no
power of the government can be constitutionally
used in furtherance or aid of the effort of any class
or kind of organizations, political or otherwise, to
obtain control of the government.

"Holding an act of the Legislature to be uncon-
stitutional is never a welcome duty, and this court
has never performed it except with reluctance. It
is a duty, however, plain and unmistakable when
upon mature consideration such is the conviction
of the court. The Constitution is the supreme law
of the State, and no consideration should be suffered
to stand in the way of its enforcement. Tested by
legal principles which are clear and established,
the payment of the expenses of primary elections of
political parties is not a public purpose for which
public revenues may be used; and in our opinion
the act in question is therefore unconstitutional and
unenforceable."

In Middleton vs. Texas Power & Light Company, 1
the court sustained the constitutionality of the em-
ployers' liability act of the Thirty-third Legislature.
The court observed that apparently every constitu-
tional question suggested by the act had been em-
braced in the certificate, including some which ap-

1185 S. W. Reporter, 557.

The Supreme Court of Texas 305

pellant was in no position to raise. The principal
contention of appellant, however, was that the act
was violative of the Bill of Rights, guaranteeing
to every person, for any injury done him in his
lands, goods, reputation, or person, a remedy by
due course of law, in that it denied to employees of
employers accepting the benefits of the act, the bene-
fits of common law doctrine of negligence.

While conceding that a vested right given by the
common law was a property right protected by the
Constitution as other property, the court was of the
opinion that the act did not profess to deal with
rights of action accruing before its passage; that
which was withdrawn from the employee being
merely his right of action against the employer, as
determined by the rules of the common law, in the
event of his future injury. This the court believed
to be nothing more than a denial to him by the
Legislature of certain rules of the common law for
the future determination of the employer's liability
to him. for personal injuries incurred in the latter 's
service, and, in the plan of compensation provided,
the substitution by the Legislature of another law
governing such liability and providing a different
remedy.

"The question," says Chief Justice Phillips, in the
opinion, "is: "Was the Legislature without the power
to thus completely change the law upon the subject?
This inquiry has no concern in the wisdom of the
change; takes no account of the reason for it; it
is limited to the naked question of the Legislature's
power. . . . We rest the decision of this ques-
tion upon what seems to us is the evident proposition

306 The Supreme Court of Texas

that no one has any vested or property interest in
the rules of the common law, and therefore no one
is deprived of a constitutional right by their change
through legislative enactment. . . . The altera-
tion in the law worked by this act may be marked,
but that does not of itself affect the power of the
Legislature to so write the law; it is only with
the question of its power that we are concerned.
The bearing of the act upon the rights of employees,
in its denial to those engaged in the service of a sub-
scribing employer of a common law action for in-
juries so suffered, presents the vital constitutional
question of the legislation. It is the abrogation of a
familiar rule of liability that affords the chief chal-
lenge of its validity and not unnaturally prompts the
test of the Constitution. But that instrument has
not undertaken to preserve inviolate the rules of
the common law. That system of rules to the ex-
tent that we are governed by it was adopted by the
Legislature, and the same authority may alter it.
The right to have the liability of an employer for
an accidental injury to an employee determined
by a common law doctrine is not a constitutional
immunity, and this Act in changing that rule of
liability therefore invades no constitutional right."

CHAPTER VIII.

Reporters of the Decisions of the Supreme Court

of Texas.

JAMES WEBB AND THOMAS H. DUVAL.

James Webb and Thomas H. Duval were the first
reporters of the decisions of the Supreme Court
of Texas. They reported Volumes 1 to 3, inclusive,
of the Texas Reports.

James Webb was born in Fairfax County, Vir-
ginia, in 1792, where he was educated and admitted
to the bar. Thereafter he located in Jones County,
Georgia, where he practised law. He subsequently
removed to Webbville, Florida, and was appointed
Judge of the United States District Court for the
District of Florida. In 1838 he removed to Texas,
locating at Houston, and later removed to Austin.
He held the offices of Secretary of State, and At-
torney-General, respectively, under President La-
mar's administration. In 1841 he was elected to
the Senate of the Republic, being thereafter re-
elected to that position for three successive terms,
during which he served as chairman of the Senate
Judiciary Committee, and as a member of the
Committee on Foreign Relations. In 1840 he re-
sumed the practice of law. He is said to have as-

308 The Supreme Court of Texas

sisted in the formulation of the articles of an-
nexation authorizing the admission of Texas to the
Union. In 1846 he was appointed District Judge
of the Fourteenth Judicial District. He died No-
vember 1, 1856, while en route to Goliad to a session
of court.

Thomas H. Duval was born in Buckingham
County, Virginia, November 4, 1813. He graduated
from St. Joseph's College, Bardstown, in 1833. He
studied law in the office of John Wickliff, Post-
master-Greneral in Tyler's administration. In 1837
he located in Tallahasse, Florida, where he was
admitted to the bar. He held the office of Circuit
Clerk of Leon County, and, in 1843, was appointed
Secretary of the Territory of Florida. In 1845 he
removed to Texas, locating at Austin. In 1846 he
was appointed one of the reporters of the Supreme
Court of the Republic of Texas. In 1851 he was
appointed Secretary of State. In 1855 he was
elected District Judge of the Second Judicial Dis-
trict. In 1857 he was appointed United States
District Judge for the Western District of Texas.
He bitterly opposed secession, and in consequence
absented himself from Texas during the Civil War,
returning to the State in 1865. After nearly a
quarter of a century's service on the Federal bench,
he died at Fort Hancock, Nebraska, in 1880. A
bar resolution honoring his memory, says: "If not
brilliantly great, he was nevertheless great; for to
say of one who sat nearly a quarter of a century on
the bench, as can be said of him, that he was fully
adequate in ability and learning to every judicial

The Supreme Court of Texas 309

task; that he was always calm, patient and laborious,
never announcing his conclusions until thoroughly
comprehending all the points of the case ; that he was
impartial and unvarying in his courtesy, sustaining
the most friendly relations to the officers of his court
and bar, commanding no less their esteem than their
love, is to pay a tribute which belongs to true great-

ness."

OLIVER CROMWELL HARTLEY.

The second reporter of the Supreme Court was
Oliver Cromwell Hartley. He reported Volumes 4
to 21, inclusive, of the Texas Reports.

Oliver Cromwell Hartley was born near the village
of Bloody Run, Bedford County, Virginia, March
31, 1823. After the completion of a preparatory
course, he entered Marshall College, Mercersburg, in
1838. Upon the completion of the course in that in-
stitution, he studied law in the office of Samuel M.
Barclay, and was admitted to the bar upon attaining
his majority. Practising law for a short time in
his native State, he removed to Texas in 1846, locat-
ing at Galveston. Through the kindly offices of Mr.
Buchanan, he received valuable testimonials touch-
ing his character and ability, and recommending
him to the confidence of the public in his new home.
Upon the issuance of a call for volunteers to march
to the relief of General Taylor's army, at Fort
Brown, Mr. Hartley became a private in the ex-
pedition. In 1848 he began the compilation of
Hartley's Digest of the Laws of Texas, which he
completed in 1849. This work is an enduring mon-
ument to the efficient, scholarly labors he devoted

310 The Supreme Court of Texas

to the performance of professional work, and is
today recognized by the legal profession as the best
work of its kind, covering the period of which it
treats, that has been written. The following in-
cident is quoted as illustrating his scrupulous cor-
rectness and unyielding adherence to the letter of the
law:

"The law required copies [of his Digest] sub-
scribed for by the Governor 'to be bound in 'law
calf.' When he came to contract with his publisher,
the latter told him this was a technical term of the
trade, and meant 'sheep' dressed for law-binding,
in contradistinction to 'split-sheep'; that 'calf was
rarely used, and not one person in a hundred could
distinguish the difference. His reply was that the
1500 copies for the State must be in actual 'law-
calf,' and such they were." 1

During the winter of 1851-2, he ably represented
Galveston County in the Sate Legislature, where he
was noted for his frankness and independent bear-
ing, and his refusal to enter into the intrigues and
cabals by which legislation is often controlled. On
the 10th of February, 1854, a law was passed by the
Legislature creating a commission to be appointed
by the Governor to codify the laws of the State.
Mr. Hartley, John "W. Harris, and James "Willie
were appointed members of this commission, the
preparation of the code of civil procedure being
committed to Hartley. After the completion of his
labors on the commission, Mr. Hartley prepared and
published a volume of "Forms" for the use of the

iSketch of O. C. Hartley, 21 Texas.

The Supreme Cottrt of Texas 311

legal profession in civil proceedings. He died at
Galveston, Texas, February 13, 1859. Contem-
poraries ascribe Ms death to overwork which under-
mined his strong physical constitution.

GEORGE F. MOORE AND R. S. WALKER.

George F. Moore and E. S. Walker were the third
reporters of the Supreme Court, their work cover-
ing Volumes 22 to the 25th Supplement, 1 inclusive,
of the Texas Eeports. A sketch of George F. Moore
appears elsewhere.

Richard S. "Walker was born in Barren County,
Kentucky, in 1824. In 1844 he graduated from
Centeniary College, Jackson, Louisiana. Thereafter
he entered the law department of Transylvana Uni-
versity, Lexington, Kentucky, from which he grad-
uated in 1844. After devoting a year to the study
of civil law, with a view to engaging in the practice
in Louisiana, he changed his plans, and removed to
Texas instead, locating at San Augustine in 1846.
In 1848 he removed to Nacogdoches. He was ap-
pointed District Attorney for the district including
Nacogdoches County, and was thereafter elected to
that office, in which he served a series of terms
aggregating eight years. In 1857 he formed a law
partnership with George F. Moore, and was con-
nected with that firm until elected District Judge,
in 1860. He was a member of the Constitutional
Convention of 1866. In 1873 he was appointed

iThe 25th Supplement was reported by Geo. W. Paschal; the 25th.
Texas was reported by Geo. F. Moore alone.

312 The Supreme Court op Texas

District Judge of the district in which he formerly
resided, and at the expiration of his term, was elected
to the position. In 1879 he was appointed a member
of the Commission of Appeals.

CHARLES L. RORARDS AND A. M. JACKSON.

Charles L. Eobards and A. M. Jackson were the
fourth reporters of the Supreme Court. They re-
ported Volumes 26 to 29, inclusive, of the Texas Ee-
ports.

Alexander M. Jackson was born on his father's
estate at Drumfaldra, near Bally-Bay, County
Monaghan, Ireland, November 7, 1823. His mother
died when he was three weeks old. His father remar-
ried in 1831, and having suffered financial ruin
through security debts, emigrated with his family
to America, settling in North Alabama, where he
died in 1837, leaving no estate. Thereafter the
widow, with two children of the second family,
removed to Marietta, Ohio, and, at the age of four-
teen, young Jackson was left to care for himself.
For three years he earned his support, principally
by clerking in a store in Memphis, Tennessee. In
1840, at the invitation of his step-mother, he ac-
cepted a home with her, and for two years was under
the tuition of private teachers employed by this
considerate woman. Thereafter he attended Mar-
ietta College, and later studied law under Arius Nye.
Mr. Jackson completed his law studies under Colonel
T. J. Word, of Holly Springs, Mississippi, in 1843.
In 1845 he was admitted to the bar, and entered the
practice at Ripley, Tippah County, Mississippi. In

The Stjpeeme Court op Texas 313

1846 lie organized a company for participation in
the Mexican War, and served as captain of Com-
pany E, Second Eegiment, Mississippi Volunteers.
At the close of the war he resumed the practice
of law at Ripley, in connection with Colonel Nat.
Price, one of the leading lawyers of that section of
the State. In 1857 he was appointed Secretary of the
Territory of New Mexico, by President Buchanan,
and resided there until 1861. In 1863 he was ap-
pointed Chief Justice of the Territory of Arizona,
by President Davis, but the Territory being in the
hands of the enemy, the court was never organized.
At the outbreak of the Civil War he was commis-
sioned Adjutant-General of Sibley's Brigade. Find-
ing himself penniless at the close of the war, he was
compelled to support his family for the next year
and a half, from week to week, often by day labor.
In August, 1866, he removed to Austin, where he
obtained a clerkship in the Comptroller's office under
Willis L. Robards, at $75 per month. In that year
he was appointed reporter of the Supreme Court,
in conjunction with Charles L. Robards, but was
removed in 1867 by the Federal authorities as an
"impediment to reconstruction." He was reporter
of the Court of Appeals from its organization in
May, 1876, to the date of his death— July 11, 1889—
during which time he reported twenty-seven volumes
of reports of that court.

314 The Supreme Court of Texas

george w. paschal.

George W. Paschal was the fifth Supreme Court
reporter. He is familiarly known to the legal
profession as the author of that excellent work,
"Paschal 's Digest of the Laws of Texas." He
reported Volumes 30 and 31, of the Texas Reports,
as also the 25th Supplement, as hereinbefore noted.

E. M. WHEELOCK.

E. M. Wheelock was the sixth Supreme Court
reporter. He reported Volumes 32 to 37, inclusive,
of the Texas Reports.

ALEXANDER TERRELL AND ALEXANDER S. WALKER.

Alexander W. Terrell and Alexander S. Walker
were the seventh Supreme Court reporters. They
reported Volumes 38 to 52, inclusive, of the Texas
Reports. A sketch of Alexander S. Walker appears
elsewhere.

ALEXANDER W. TERRELL.

Alexander W. Terrell was the eighth Supreme
Court reporter. He reported Volumes 52 to 71, in-
clusive, of the Texas Reports.

Alexander Watkins Terrell was born in Patrick
County, Virginia, November 3, 1827. In 1832 his
parents removed to Cooper County, Missouri, where
he was reared, and received his early education.
Thereafter he completed a course of study in the
University of Missouri. In 1847 he began the study

The Supreme Court op Texas 315

of law in the office of Judge Peyton R. Hayden, at
Boonville. In 1849 he was admitted to the bar,
and entered the practice at St. Joseph. In 1852 he
removed to Texas, locating at Austin, where he at-
tained distinction as one of the ablest members of
the Texas bar. 1857 he was elected District Judge
of the Eleventh District. In 1863 he entered the
Confederate army as Lieutenant-Colonel of the
Thirty-Fourth Regiment of Texas Calvary. He was
thereafter promoted to colonel, commanding his
regiment until the close of the war. His command
participated in the battles of Mansfield, Pleasant
Hill, Jenkins' Ferry, and other important engag-
ments. In 1865 he was promoted to the rank of
brigadier-general. At the close of the war he located
at Houston, where he engaged in practising law until
1867, when he retired to his plantation in Robertson
County, where he devoted himself to agricultural
pursuits for several years. In 1873 he returned to
Austin, which was thereafter his permanent home.
In 1875 his distinguished career as a legislator was
inaugurated by his election to the State Senate. At
that period of the history of the State, constitutional
government had been restored after years of the ruin-
ous rule of carpet-baggers foisted upon the people by
Federal military authority, and the herculean task of
bringing order out of chaos confronted the officers
elected by the people. In that important work no
man brought to bear greater energy, learning and
seasoned statesmanship. His first efforts were de-
voted to the purification of the administration of
justice, and to that end he formulated the law re-
quiring of jurors in civil and criminal cases the

316 The Supreme Court or Texas

qualification of ability to read and write. In 1879
lie was re-elected to the State Senate, and was the
author of the bill providing for the construction of
the present State Capitol. He was the father of
the Texas Railroad Commission, being the first
Texas legislator to advocate the creation of that
important department of our State government,
which was created by an act written by him.

"Not being content to stop with this reform,"
says an able biographer, 1 "he entered the political
arena again to take his last stand in his last public
fight for his people. This last fight was the crown-
ing glory of his life and the same halo that wreathed
the brow of Thomas Jefferson, the author of the
Declaration of Independence, wreathed the brow of
Alexander Terrell as he wrote the bill known as 'The
Terrell Election Law/ which liberated the people
he so devoutly loved from the tyrannical decrees of
predatory masters, who corrupted and subsidized the
ballot box as their oracle. Through this oracle, un-
defended and unguarded as it was, the plutocrat
spoke his will to the masses and they were forced to
obey, therefore, and thereby this commonwealth was
governed. . . . This was the condition of affairs
when the champion of reform bared his breast to the
fray and stood like a god of war against the hosts
of hell. He introduced his bill. A great fight was
made against it as presented. Amendment after
amendment was made which made the original bill
weaker and weaker and consequently less compre-
hensive. Predatory interests had their henchmen

'Mr. Sinclair Morcland.

The Supreme Cotjkt of Texas 317

there to undermine and tear to pieces the barricade
of the people's defense. At last the bill was passed
bearing the original author's name, but in a condi-
tion that roused the author's ire, for it was so
patched and mutilated that he could hardly recog-
nize it as his own creation."

During President Cleveland's second administra-
tion Judge Terrell was appointed minister to Tur-
key. The Armenian massacres, as then report-
ed from that country, appalled civilization,
while desperate encounters between Turks and
Armenians were almost daily reported in the public
prints. The situation in that unhappy country was
one that imperatively demanded the first grade
diplomatic ability, seasoned judgment, and execu-
tive capacity. How well Judge Terrell measured
to those requirements, his administration of the deli-
cate and important duties of his position abundantly
attest. The nature of the duties imposed upon him
at that post may be understood when it is remem-
bered that during his ministry one hundred thous-
and persons perished in numerous conflicts between
Turks and Armenians, while an indignant and out-
raged world stigmatized the reigning Sultan as
"Abdul the Damned." Judge Terrell recognized
that the best means of obtaining needed protection
of the interests of his government and the lives of
its citizens was to gain the confidence and friendship
of the Sultan. This he attained by his open, frank
and candid method of dealing with that ruler and
his ministers of state, with the result that while
many missionaries of other countries were severely
tortured or put to death, American missionaries were

318 The Supreme Court of Texas

unmolested. It remained for Judge Terrell to do
Abdul Hamid the justice of freeing him from the
unjust accusation of being the author and instigator
of many of the unspeakable crimes incident to bloody
conflicts and massacres of Armenians in Turkey.
"The Sultan," said Judge Terrell, "did not deserve
the reputation of being a butcher, but, upon the
other hand, he was one of the most gentle and kind
hearted men I ever knew, and when I say this I
am keeping a promise made to the Sultan, that when
I finished my diplomatic service I would give the
facts to the American people." This he did by show-
ing as a result of his patient and impartial in-
vestigation of the facts relating to many of those
alleged horrors, that they were in many instances
mere fabrications of a young Armenian secret so-
ciety, similar to the Camorra in Italy, known as the
"Hencjack Society," many members of which were
employes of a Bible house in Turkey which dissem-
inated the reports in America for obvious reasons.
As reporter of the Supreme Court decisions, Judge
Terrell's work speaks in higher praise of his schol-
arly professional labors than any tribute which could
be paid them. It is no criticism of the work of
other distinguished reporters of the court to say
that he was the ablest of those patient and effi-
cient officers who have left their lasting impress
upon the official reports of that august tribunal.
His literary attainments were unexcelled by those
of any public man connected with the history of the
State, with the possible exception of Mirabeau B.
Lamar. As legislator, his achievements are briefly
summarized in the truthful legend inscribed on his

The Supreme Court of Texas 319

portrait adorning the walls of the House of Repre-
sentatives of the Capitol at Austin :

"The author of more good laws for Texas than
any other man, living or dead."

Judge Terrell died at Mineral Wells, Texas, Sep-
tember 9, 1912.

Alexander S. Walker.

Alexander S. Walker was the ninth reporter. He
reported Volumes 72 to 88, inclusive, of the Texas
Reports.

A. E. Wilkinson.

A. E. Wilkinson is the tenth and present official
reporter, and to the present time has reported Vol-
umes 89 to 107, inclusive, of the Texas Reports.

320 The Supreme Cotjet of Texas

SUPREME COURT CLERKS.

The following is a list of the Supreme Court clerks
in the order of their service, at the respective
branches of the court, and the period thereof:

AUSTIN.

1. Thomas Green, 1846-1866.

2. W. G. Brown, 1866.

3. George H. Gray, 1867-1869.

4. W. P. DeNormandie, 1869-1881.

5. Charles S. Morse, 1881-1902.

6. F. T. Connerly, 1902— Present clerk.

TYLER.

1. James F. Johnson, 1862-1867.

2. Thomas W. Smith, 1867.

3. George H. Slaughter, 1868-1869.

4. R. P. Roberts, 1874-1878.

5. S. D. Reeves, 1878-1891.

GALVESTON.

1. James E. Johnson, 1862-1867.

2. William F. Garrett, 1867.

3. George "W. Honey, 1868-1870.

4. James B. Shearer, 1874-1877.

5. N". J. Moore, 1877-1881.

6. Daniel D. Atchison, 1881-1894.

CHAPTER IX

Proposed Reforms est Supreme Court Procedure.

As early as 1879, the volume of business in the
Supreme Court of Texas and the crowded condition
of its docket attracted attention to the necessity
of needed reform in the procedure of the court in
the interest of expediting its business and lessening
the labors of its justices. The creation in that year
by legislative enactment of the "Commission of
Award and Arbitration," hereinbefore noted, mark-
ed the beginning of several unsuccessful attempts to
correct the evils incident to a system of procedure,
which in a more aggravated form have continued
to the present time. These early attempts to re-
form the procedure were confined to the employ-
ment of subordinate commissions to assist the Su-
preme Court in disposing of the great and rapidly
accumulating mass of business hopelessly incumber-
ing its docket. This system from its inauguration,
in addition to its inefficiency to accomplish the ob-
ject intended, was assailed by the ablest members of
the court as unconstitutional, although the majority
opinion of the court sustained its constitutionality.
In this connection we have noted the very able dis-
senting opinions of Justice Moore discussing the con-
stitutionality of the " Deputy-Supreme-Court- Judge ' '
system, as it is sometimes called by facetious and
critical members of the bar. Following numerous

322 The Supreme Cotjet of Texas

amendments in futile attempts to meet constitutional
and other serious objections to the commission sys-
tem, it appears to have been abandoned as hopelessly
inadequate and thoroughly inefficient to accomplish
the object of its creation.

When it is considered that as early as 1879, the
work of the Supreme Court had attained a volume
which imperatively demanded some measure of re-
form for the relief of the three judges of the court
upon whom its performance devolved, its present
volume, vastly augmented by nearly four decades
of almost phenomenal increase in the population,
progress and improvement in all branches of in-
dustry in the State, incidentally and necessarily pro-
ductive of marked increase in the volume of litiga-
tion within its jurisdiction, the vast increase of the
business of the court, even when assisted in its per-
formance by the comparatively recently adopted
system of Courts of Civil Appeals, may well be
imagined even by the non-professional mind.

Throughout the period intervening between the
years 1879 and 1917, the urgent necessity for im-
mediate action in the nature of adequate reform
of the Supreme Court procedure, for the relief of
that tribunal and its judges, has been the subject
of discussion by the bench and bar of the State, as
well as a large percentage of non-professional citi-
zens whose interests suffered from delays incident
to the existing system of procedure. It is inexplic-
able that a demand universally conceded as im-
peratively necessary to the efficiency of our civil
court of last resort, should have been so long neg-
lected by the legislative department despite con-

The Supbeme Court op Texas 323

tinuous urgent appeals by a majority of the citizens
of the State.

It is, therefore, gratifying and encouraging to
note that at the present time the agitation in the
interest of this needed reform in our Supreme
Court procedure has aroused greater interest in the
general public and the legal profession than at any
time during the many years in which the subject has
been earnestly discussed, and that the time is at
hand when the people will be given an opportunity
to perfect an adequate system for the elimination
of these evils which are not only a reproach to our
judiciary but a serious reflection upon the interest
we take in the health and lives of distinguished
judges jeopardized by present conditions in our most
important tribunal.

Not the least difficulties incident to the adop-
tion of an efficient remedy for the evils of the pres-
ent system of Supreme Court procedure originate in
differences of opinion of members of the legal
profession touching the constitutionality of proposed
legislative amendments for the accomplishment of
the desired reform. It is, therefore, not surprising
that this character of objections has been urged
to several of the proposed reform measures now
under consideration.

The following are the principal measures proposed
for the accomplishment of the desired reform :

First: A restriction of the jurisdiction of the
Supreme Court by repealing the law giving it the
power to review any decision of a Court of Civil
Appeal where it is made to appear that the latter
erred in declaring the substantive law of the case.

324 The Supreme Court op Texas

* Second: A measure championed by a committee
of lawyers, some selected by the Governor, some by
the State Bar Association, and others by the law
department of the University of Texas. This meas-
ure authorizes members of the Supreme Court, as
is claimed without constitutional authority, to call
to their aid any two members of the Courts of Civil
Appeals to pass upon applications for writs of
error, making the action of the two hi granting or
refusing a writ of error final, without any action
thereon whatever by the Supreme Court.

Third: Repeal of the system of Courts of Civil
Appeals, and the increase of the number of judges
of the Supreme Court to nine, or such number as
shall prove adequate to the efficient and prompt
discharge of the business of that court.

A prominent lawyer 1 in a recent discussion in the
press of some of the proposals above mentioned, di-
rected attention to several objections urged to their
adoption. He believed that no one would complain
of the restrictions sought to be placed upon the
Supreme Court's jurisdiction as proposed by the
first plan, but that the ablest lawyers of the State,
as a rule, as well as the best informed of the public,
were generally decidedly opposed to any further re-
striction of the jurisdiction of the Supreme Court,
realizing that in order to preserve a jurisprudence
worthy of the name, there should be only one tri-
bunal having the final determination as to what
should be the law throughout the State, and to se-
cure its uniform administration within that juris-

iDon A. Bliss.

*Since this chapter was -written the plan has been adopted and is
now in force. — Ed.

The Supreme Court of Texas 325

diction. He believed that to further restrict the
jurisdiction of the Supreme Court, and turn the
Court of Civil Appeals loose, so to speak, would be
to make present confusion worse confounded, one
result of which would be that a man would find him-
self with a legal right that could be enforced if his
case came up in one supreme judicial district, while
if it arose in another he had none.

The second proposal, advocated as it is by several
of the ablest laywers of the state, has been sub-
jected to severe criticisms on constitutional grounds.
The contention is made that judges of the Courts of
Civil Appeals who may be selected to discharge
duties already conferred upon the justices of the
Supreme Court by the Constitution, would be un-
authorized to perform the same in the absence of a
constitutional provision conferring that power upon
them; that their selection by members of the Su-
preme Court would not be authorized by any pro-
vision of the Constitution conferring upon Supreme
Court judges the power to delegate to other judges
of inferior courts the performance of duties which
the Constitution has conferred upon the former. It
is also contended that the provision declaring that
the action of a judge of the Court of Civil Appeals
in granting or refusing a writ of error should not
be considered, as determining any issue would de-
stroy the usefulness of such judge as an aid to
the Supreme Court in disposing of business, as his
labors would merely result in postponement until
an authoritative decision could be had on some sub-
sequent application to a judge of the Supreme Court.

The writer hereinbefore quoted, in the course of

326 The Supreme Court of Texas

his discussion of the first and second proposals,
says:

''It is seen that the first mentioned measure pro-
poses to remedy the evil mentioned by shutting the
door of the supreme court to applications for writs of
error in the great bulk of the cases decided by the
courts of civil appeal; and the second measure pro-
poses to remedy the evil mentioned by having an-
other body of men to do the work that the Constitu-
tion and the present law requires the Supreme Court
itself to do.

"Both of these measures overlook the greatest evil
that the people of the State are suffering from under
our present system of appellate judiciary; and it
seems that no remedy is even suggested for the
greatest of all evils in our judicial system.

"That litigants should have to wait for years for
a final disposition of their cases is undoubtedly a
great hardship, which should be remedied, for it
amounts in many cases to a substantial denial of
justice.

"But for the people of a State to have no cer-
tain rule of law uniformly administered by the
courts, to go by, is a still greater evil, which, if not
already so, will in process of time unless remedied,
become absolutely intolerable, and will lead to the
abolition of our present system and the substitution
of another."

The third proposal, providing for the abolishment
of the Court of Civil Appeals, is advocated by many
of the legal profession who opposed the adoption of
that system on economical grounds, as well as a fear
that its operation would result in an unsettled, con-

The Supreme Court of Texas 327

flicting state of adjudicated law incident to jurisdic-
tions having many courts of co-ordinate powers, in-
termediate for the most part, but courts of last resort
in a numerous and important class of cases. In the
main, however, it must be admitted that whatever of
evil and inconvenience has resulted from the admin-
istration of these courts are more the result of the
system than any fault of justices who have served in
those tribunals. Advocates of the retention of the
Courts of Civil Appeals, while admitting that the
system is open to just criticism, assert that no lesser
number of courts than those provided by it would be
adequate to the great task of weeding out the mass of
details necessary to the lightening of the labors of
the judges of the Supreme Court.

Those who advocate the abolition of the sys-
tem of Courts of Civil Appeals believe that all
intermediate courts between the trial courts and the
Supreme Court should be abolished in the interest
not only of economy in the judiciary, but also in
the interest of that harmony in the decisions of the
superior courts which shall enable the average law-
yer to ascertain what the adjudicated law is upon a
given point at a stated time. As a matter of course
these critics, for obvious reasons, are advocates of
the plan to increase the number of Supreme Court
judges sufficiently to insure the prompt dispatch of
the business of the court by its members without
outside assistance in the exercise of their functions.

No doubt the well-known disinclination of citizens
to adopt radical changes in the organic law of the
State embodied in the Constitution has resulted in
ill-advised efforts to accomplish by legislative en-

328 The Supreme Court of Texas

actment judicial reforms which could only be ac-
complished by necessary amendments to the Consti-
tution, and in view of past efforts in that direction,
there is every reason to believe that present re-
formers will recognize the necessity of taking no
chances upon the enactment of a measure the consti-
tutionality of which is open to serious doubt or rea-
sonable question.

No doubt a full discussion of the several proposals
for eliminating the defects of the present system of
Supreme Court procedure will result in the adoption
of a measure which will prove adequate and satisfac-
tory in the elimination of evils which for many years
have been a reproach to our judiciary, a reflection
upon our citizenship and a practical denial of jus-
tice.

THE END.

APPENDIX A.

RULES FOR THE COURTS OP TEXAS.
RULES FOR THE SUPREME COURT.

APPLICATIONS FOR WEITS OP ERROR.

1. Applications for writs of error from the Supreme Court
to the Courts of Civil Appeals shall conform to the require-
ments herein prescribed and the provisions of the statute.

(a) The application shall be addressed to "The Supreme
Court of Texas."

(b) It shall present a question of law decided by a Court of
Civil Appeals of which the Supreme Court has jurisdiction as
defined by Article 1521, Revised Statutes, 1911, as amended by
Chapter 55 of the Acts of the Thirty-third Legislature, and no
other questions will be considered; but questions of law arising
under two or more of the subdivisions of that article may be
presented in the same application under separate assignments.

(c) The decision or ruling sought to be reviewed must have
been assigned as error in the motion for new trial in the trial
court, if such motion was made or required by law to be made,
and such error must have been assigned and presented in the
Court of Civil Appeals and in a motion for rehearing in the
latter court. If the decision or ruling sought to be reviewed
originated in the Court of Civil Appeals it must have been
presented in the motion for rehearing in that court. The ap-
plication shall state that the particular decision or ruling was
assigned as error in the motion for rehearing in the Court of
Civil Appeals.

(d) The statement of the case made by the Court of Civil
Appeals, its conclusions of fact and law and its opinion will be

330 Appendix

read and considered without being incorporated in the applica-
tion.

A brief statement of the case, if desired, may, however, be
made in the first section or paragraph of the application.

(e) There shall be contained in the first section or para-
graph of the application a subdivision entitled:

GROUNDS OF JURISDICTION.

In which subdivision it shall be made to affirmatively appear
that the case is one of which the Supreme Court has jurisdic-
tion under Article 1521, Revised Statutes, 1911, as amended by
Chapter 55 of the Acts of the Thirty-third Legislature, and in
which it shall further affirmatively appear :

(1) If the case be one in which the judges of the Court of
Civil Appeals have disagreed upon a question of law material
to the decision of the case, that the disagreement is upon such
a question, which, together with the holding thereon of the
majority of the court and the dissenting judge, respectively,
shall be specifically and succinctly stated.

(2) If the case be one in which the Court of Civil Appeals
has held differently from a prior decision of its own, or of
another Court of Civil Appeals or of the Supreme Court, upon
any question of law, that such different holding is upon plainly
a question of law, which holding thereon, by the Court of
Civil Appeals, as well as that of such prior decision or decisions,
and the point of conflict between them, shall be specifically
and succinctly stated, with accurate reference to the book and
page of the reports where such decision or decisions may be
found.

(3) If the case be one which involves the validity of a
statute, in what respect its validity is involved, and what par-
ticular provision or provisions are involved, if its alleged in-
validity be only partial.

(4) If the case be one which involves the revenue laws of
the State, in what manner or respect such laws are involved.

(5) If the case be one in which the Court of Civil Appeals

Appendix 331

has erroneously declared the substantive law of the case, that
the ruling complained of was upon a question or questions of
law that substantially affected the right of the plaintiff to re-
cover or the right of the defendant to maintain his defense.

(f) In cases in which the Railroad Commission is a party
or in which the revenue laws of the State are involved, any
question of law material to the decision of the case may be
assigned; but in all other cases the Supreme Court will only
take jurisdiction for the purpose of correcting errors of the char-
acter specifically designated in subdivisions 1, 2, 3, and 6 of
Article 1521, Revised Statutes of 1911, as amended by Chapter
55 of the Acts of Thirty-third Legislature.

(g) If the error complained of consists in the application
by the Court of Civil Appeals of the substantive law of the case
it must be made to affirmatively appear from the presentation
of such ruling that it was erroneous and in what manner it
injuriously affected the plaintiff's right to recover or the de-
fendant's right to maintain his defense.

(h) Bach ground of error must be presented separately by
an assignment stating clearly and succinctly the error com-
plained of, which shall be immediately followed by such propo-
sitions of law, if the assignment be not itself submitted as a
proposition, statement from the record, and citation of authori-
ties, as will show in what manner the particular ruling com-
plained of was reasonably calculated to cause and did cause
the rendition of an improper judgment in the case.

(i) In the respect of assignments of error, propositions of
law and statements from the record, the application shall be
complete in itself, and references to the brief filed in the Court
of Civil Appeals for assignments of error, propositions of law
or statements from the record will not be considered. Reference
may be made in the application to the citation of authorities
and the argument contained in such brief under any assignment
of error, which will be considered if the page of the brief be
given where the same may be found.

(j) Argument upon any assignment of error or proposition
of law thereunder may be contained in the application, but shall
be reserved for the conclusion of the application, following the

332 Appendix

presentation of all assignments of error and propositions of
law submitted, and referring by its number to the assignment
to which it is addressed.

The plaintiff in error shall file the application with the clerk
of the Court of Civil Appeals in which the proceeding sought
to be reviewed was had in the manner and time required by
law, and shall, in addition to such requirements, deposit with
the clerk of said court a true copy of the application to be
delivered by said clerk to the defendant in error, which copy
shall not be marked filed. The plaintiff in error, or the attor-
ney, shall notify the attorney of the defendant in error of the
filing of the application and the deposit of the copy thereof.

(2) The clerk of this court shall receive all applications for
writs of error, and file the petition and accompanying tran-
script from the Court of Civil Appeals, and enter the case upon
the docket kept for that purpose, known as the application
docket. But he shall not be required to take the same from the
postofflce or an express office unless the postage or express
charges, as the case may be, shall have been fully paid. The
cases shall be numbered consecutively on the application docket
and the number shall be placed upon the application.

3. After the expiration of ten days from the filing of the
record and the application in this court it will be deemed sub-
mitted to the court and ready for disposition and will be acted
upon by the court, unless for sufficient reason the court may
grant further time to cither party.

4. When the plaintiff in error has failed to file his applica-
tion within the time prescribed by law, the clerk of this court
shall submit the matter to the court before filing same with
any statement of excuse which may be presented by the appli-
cant, and the court will act upon such application to file. If it
be refused, then no record will be made of the application or
the disposition of it.

When the application shall have been filed for a period of ten
days, if the court shall determine to refuse the same, then,
whether the defendant has answered or not, the clerk of the court
will retain the application, together with the transcript and
accompanying papers, for fifteen days, from the day of rendition
of the judgment refusing the writ. At the end of that time, if

Appendix 333

no motion for rehearing has been filed, or upon the overruling
or dismissal of such motion, in case one has been filed, the clerk
of this court shall transmit to the Court of Civil Appeals to
which the writ of error is sought a certified copy of the orders
of this court denying such application and of the order over-
ruling the motion for a rehearing thereof, and shall return the
papers which belong to that court to the clerk thereof, but shall
retain the petition for writ of error. A motion for rehearing of
an application for writ of error is not a matter of right, but, in
case such motion shall be filed within fifteen days after the re-
fusal of the application and before the court shall adjourn for
the term, the court will consider the same if it be based upon
a ground not embraced in the application or contains the cita-
tion of authorities not before cited. The presentation of any
point or points presented in the application without urging some
new argument or citing some new authority will be deemed a
sufficient ground for dismissing the motion.

5. The defendant in error shall have ten days from the date
of the filing of the application in the Supreme Court to file an
answer thereto, which must be confined to a reply to the grounds
of error presented by the plaintiff in error and to such matter
as may be pertinent to show to the court that the plaintiff in
error is not entitled to the writ, and in support of the correct-
ness of the judgment of the court below. If the defendant in
error shall file such answer, and the Supreme Court shall con-
clude that the writ of error should be granted, it may in its dis-
cretion proceed to finally dispose of the case ; provided, the de-
fendant in error may in his answer expressly reserve the right
to be heard in open court, in which event the case will stand
for submission in regular course. If such right be not ex-
pressly reserved by the defendant in error in his answer, and
the court shall deem it proper to finally dispose of the case upon
hearing the application, it shall write such opinion as it may
think proper and shall, in open court, pronounce the judgment
of the case and enter the same of record, as in other cases. If
the defendant in error shall not answer the application, then,
the court having granted the writ, the clerk of the court shall
issue the writ of error to the judges of the Court of Civil Ap-
peals to which the writ of error is sought, advising them that

334 Appendix

the writ has been granted. The clerk shall issue the citation to
the defendant or defendants in error, or to the attorney of
record for the defendant, notifying him or them that the writ
of error has been granted and of the date thereof, and to appear
and defend the same. Such citation shall be returnable in ten
days and in the event it be not served, the clerk shall issue other
successive citations until due service is had. Service of the
citation upon one attorney will be deemed service upon all par-
ties represented by him. If no bond be required the citation
and writ of error shall issue immediately upon the granting
of the application. If a bond be required the writ shall issue
upon receipt of the duly certified copy of the bond prescribed
by the statute. Unless further time be allowed by special order
of the court in the particular case the certified copy shall be
filed in the Supreme Court within ten days from the granting
of the application. If the copy be not so filed, the application
will be dismissed by the court of its own motion.

5a. An application for a writ of error made to this court
upon the ground that the trial court has committed an error of
law in the course of the trial will not be granted unless the
plaintiff in error shall in his application make it appear that
the error was reasonably calculated to cause the rendition of an
erroneous judgment in the ease, and, in ease the application
may have been granted, this court will not reverse the judg-
ment unless it shall be made to appear that the error of law
complained of was reasonably calculated to cause and probably
did cause the rendition of an improper judgment in the cause.

5b. "Whenever in any ease in which a writ of error has been
granted or in which such writ may hereafter be allowed, it shall
be made to appear to the clerk of this court by the affidavit of
a plaintiff in error, his agent or attorney, that the defendant in
error has no attorney of record and either that he is beyond the
limits of the State or that his residence is unknown, so that it
is impracticable to serve citation upon him in the ordinary
method provided by law, it shall be the duty of the clerk of this
court upon the plaintiff in error making provision for the pay-
ment of the expense thereof, to cause notice of the granting of
the writ to be published once each week for four successive
weeks in some newspaper published in the county in which the

Appendix 335

case was tried; or a notice of the granting of the writ may be
issued by the clerk of this court and may be served upon the
defendant in error and returned in the manner provided in
Articles 1230, 1232 and 1233 of the Kevised Statutes, except no
copy of the petition for the writ of error need be served. Notice
given in either of the two modes herein provided shall have the
same effect as service of citation, as provided in rule 5 ; and the
publication or service of notice may be proved by the affidavit
of any person, deposited with the clerk and filed among the
papers in the cause.

6. "When service of the citation in error shall have been had,
or the defendant in error has filed a reply to the application,
it shall be the duty of the clerk to put the case upon the trial
docket and to mark upon the file the number of the case shown
upon such docket. Cases upon the trial docket shall be num-
bered consecutively in the order in which they are entered
thereon.

7. Causes in this court will be regularly submitted on Wed-
nesday of each week, though a case may be set down for sub-
mission upon another day by the permission or direction of the
court.

8. A case shall stand for submission upon the first regular
day of the submission of causes coming after the expiration of
twenty days from the day on which the writ of error shall
have issued, provided, the citation in error shall have been
served ten days before such submission day. If not so served
then the case shall be subject to submission on the first regular
submission day which falls ten days after service of the citation.

9. Unless otherwise ordered, motions will be submitted with
the case, and the adverse party will be required to take notice
of all motions filed in the cause on or before the Tuesday imme-
diately preceding such submission day. Notice shall be given of
all motions filed after that time.

10. The clerk shall keep a motion docket upon which shall
be entered every motion as soon as filed. The motions shall be
numbered consecutively upon the docket and its number shall
be placed on the motion itself.

11. A party who elects to file in this court a brief in addi-
tion to the brief filed in the Court of Civil Appeals, shall com-

336 Appendix

ply as near as may be with the rules prescribed for briefing
causes in the latter court and shall confine his briefs to the
point raised in the motion for a rehearing and presented in the
application for a writ of error.

12. When any Court of Civil Appeals shall certify to this
court any question for determination, or shall send to this court
any cause upon a certificate of dissent, either upon its own mo-
tion or that of any party, the certificate, in either case, shall
be accompanied by the briefs filed in the Court of Civil Ap-
peals ; and the clerk of this court shall, upon the Teceipt of the
briefs, issue notices to the attorneys whose names appear there-
on of the day on which the question or cause, as the case may
be, shall be set down for submission.

13. The rules prescribed for the Court of Civil Appeals as
to the custody of transcripts, the argument of causes and as to
the notices to attorneys of the disposition of cases shall govern
in this court.

CERTIFIED QUESTIONS.

14. When a certified question from a Court of Civil Ap-
peals is presented to the clerk of this court, he will file and
docket it and send it at once to the consultation room. If the
court should determine that the question is not properly certi-
fied under the statute, so as to give jurisdiction to answer it,
it will be dismissed without a hearing. Otherwise, it will be set
down for argument on a day to be fixed by the court in regular
session.

MANDAMUS.

15. Parties desiring a writ of mandamus from this court are
required to cause the petition therefor to be presented to the
clerk of the court, accompanied with a motion that the same be
filed and set down for a hearing, and also accompanied with such
written argument in behalf of the motion as may be desired.
The motion will be filed, and, together with the petition and ar-
gument, if any, will be sent at once to the consultation room for
the action of the court. If the court should be clearly of opin-
ion that upon the facts stated in the petition the writ should

Appendix 337

be awarded, the motion will be granted; otherwise, it will be
overruled by an order made in open court and entered upon
the minutes. The relator shall also file with his motion a bond
with two or more good and sufficient sureties, to be approved
by the clerk of this court, in the sum of fifty dollars; or, in
case he be unable to pay the costs, or give security therefor,
an affidavit in lieu of such bond. Such bond shall be condi-
tioned, or in case of an affidavit, the affidavit shall be such as
is required by the statutes for cost bonds or affidavit in lieu
thereof, in suits in the district court.

16. Attorneys desiring to withdraw papers from the clerk's
office, after the decision of a cause or of an application for writ
of error, to prepare motion for rehearing or for other pur-
pose, shall first file with the clerk of this court an agreement
with opposing counsel. The clerk is not authorized to send pa-
pers from his office in the absence of such an agreement. Tran-
scripts and other papers in cases finally disposed of shall not
be taken from the clerk's office.

APPENDIX 3.
CONSTITUTION OF THE STATE OF TEXAS.

PREAMBLE.

Humbly invoking the blessing of Almighty God, the people of
the State of Texas do ordain and establish this Constitution.

ARTICLE I.

BILL OF EIGHTS.

That the general, great, and essential principles of liberty
and free government may be recognized and established, we de-
clare :

Section 1. Texas is a free and independent State, subject
only to the Constitution of the United States; and the main-
tenance of our free institutions and the perpetuity of the
Union depend upon the preservation of the right of local self-
government unimpaired to all the States.

Sec. 2. All political power is inherent in the people, and all
free governments are founded on their authority, and insti-
tuted for their benefit. The faith of the people of Texas stands
pledged to the preservation of a republican form of govern-
ment, and, subject to this limitation only, they have at all
times the inalienable right to alter, reform or abolish their gov-
ernment in such manner as they may think expedient.

Sec. 3. All free men when they form a social compact have
equal rights, and no man or set of men is entitled to exclusive
separate public emoluments or privileges, but in consideration
of public services.

Sec. 4. No religious test shall ever be required as a quali-

Appendix 339

fication to any office, or public trust, in this State; nor shall
any one be excluded from holding office on account of his re-
ligious sentiments, provided he acknowledge the existence of
a Supreme Being.

Sec. 5. No person shall be disqualified to give evidence in
any of the courts of this State on account of his religious opin-
ions, or for want of any religious belief, but all oaths or affirma-
tions shall be administered in the mode most binding upon
the conscience, and shall be taken subject to the pains and pen-
alties of perjury.

Sec. 6. All men have a natural and indefeasible right to
worship Almighty God according to the dictates of their own
conscience. No man shall be compelled to attend, erect or sup-
port any place of worship, or to maintain any ministry against
his consent. No human authority ought, in any case whatever,
to control or interfere with the rights of conscience in matters
of religion, and no preference shall ever be given by law to
any religious society or mode of worship. But it shall be the
duty of the Legislature to pass such laws as may be necessary
to protect equally every religious denomination in the peaceable
enjoyment of its own mode of public worship.

Sec. 7. No money shall be appropriated or drawn from the
treasury for the benefit of any sect or religious society, theolog-
ical or religious seminary; nor shall property belonging to the
State be appropriated for any such purposes.

Sec. 8. Every person shall be at liberty to speak, write or'
publish his opinions on any subject, being responsible for the
abuse of that privilege; and no law shall ever be passed cur-
tailing the liberty of speech or of the press. In prosecutions for
the publication of papers investigating the conduct of officers
or men in public capacity, or when the matter published is
proper for public information, the truth thereof may be given
in evidence. And in all indictments for libels the jury shall
have the right to determine the law and the facts, under the
direction of the court, as in other cases.

Sec. 9. The people shall be secure in their persons, houses,
papers, and possessions from all unreasonable seizures or
searches, and no warrant to search any place, or to seize any
person or thing, shall issue without describing them as near as

340 Appendix

may be, nor without probable cause, supported by oath or af-
firmation.

Sec. 10. In all criminal prosecutions the accused shall have
a speedy public trial by an impartial jury. He shall have the
right to demand the nature and cause of the accusation against
him, and to have a copy thereof. He shall not be compelled to
give evidence against himself. He shall have the right of being
heard by himself or counsel, or both; shall be confronted with
the witnesses against him, and shall have compulsory process
for obtaining witnesses in his favor. And no person shall be
held to answer for a criminal offense, unless on indictment of
a grand jury, except in cases in which the punishment is by.
fine, or imprisonment or otherwise than in the penitentiary, in
cases of impeachment, and in cases arising in the army and
navy, or in the militia, when in actual service, in time of war
or public danger.

Sec. 11. All prisoners shall be bailable by sufficient sureties,
unless for capital offenses when the proof is evident; but this
provision shall not be so construed as to prevent bail after
indictment found, upon examination of the evidence in such
manner as may be prescribed by law.

Sec. 12. The writ of habeas corpus is a writ of right, and
shall never be suspended. The Legislature shall enact laws to
render the remedy speedy and effectual.

Sec. 13. Excessive bail shall not be required, nor excessive
fines imposed, nor cruel or unusual punishment inflicted. All
courts shall be open, and every person for an injury done him
in his lands, goods, person or reputation shall have remedy by
due course of law.

Sec. 14. No person, for the same offense, shall be twice put
in jeopardy of life or liberty; nor shall a person be again put
upon trial for the same offense after a verdict of not guilty in
a court of competent jurisdiction.

Sec. 15. The right of trial by jury shall remain inviolate.
The Legislature shall pass such laws as may be needed to regu-
late the same, and to maintain its purity and efficiency.

Sec. 16. No bill of attainder, ex post facto law, retroactive
law, or any law impairing the obligation of contracts, shall be
made.

Appendix 341

Sec. 17. No person's property shall be taken, damaged or
destroyed for or applied to public use without adequate com-
pensation being made, unless by the consent of such person;
and, when taken, except for the use of the State, such com-
pensation shall be first made or secured by a deposit of money ;
and no irrevocable or uncontrollable grant of special privilege
or immunities shall be made; but all privileges and franchises
granted by the Legislature or created under its authority, shall
be subject to the control thereof.

Sec. 18. No person shall ever be imprisoned for debt.

Sec. -19. No citizen of this State shall be deprived of life,
liberty, property, privileges or immunities, or in any manner
disfranchised except by the due course of the law of the land.

Sec. 20. No citizen shall be outlawed; nor shall any person
be transported out of the State for any offense committed with-
in the same.

Sec. 21. No conviction shall work corruption of blood, or
forfeiture of estate; and the estates of those who destroy their
own lives shall descend or vest as in case of natural death.

Sec. 22. Treason against the State shall consist only in levy-
ing war against it, or adhering to its enemies, giving them aid
and comfort; and no person shall be convicted of treason ex-
cept on the testimony of two witnesses to the same overt act,
or on confession in open court.

Sec. 23. Every citizen shall have the right to keep and bear
arms in the lawful defense of himself or the State; but the
Legislature shall have power by law to regulate the wearing
of arms with a view to prevent crime.

Sec. 24. The military shall at all times be subordinate to
the civil authority.

Sec. 25. No soldier shall in time of peace be quartered in
the house of any citizen without the consent of the owner, nor
in time of war but in a manner prescribed by law.

Sec. 26. Perpetuities and monopolies are contrary to the
genius of a free government, and shall never be allowed; nor
shall the law of primogeniture or entailments ever be in force
in this State.

Sec. 27. The citizens shall have the right, in a peaceable
manner, to assemble together for their common good, and apply

342 Appendix

to those invested with the powers of government for redress of
grievances or other purposes, by petition, address or remon-
strance.

Sec. 28. No power of suspending laws in this State shall
be exercised except by the Legislature.

Sec. 29. To guard against transgressions of the high powers
herein delegated, we declare that everything in this "Bill of
Rights" is excepted out of the general powers of government,
and shall forever remain inviolate, and all laws contrary there-
to, or to the following provisions, shall be void.

ARTICLE II.

THE POWERS OP GOVERNMENT.

Section 1. The powers of the government of the State of
Texas shall be divided into three distinct departments, each
of which shall be confined to a separate body of magistry, to
wit: Those which are legislative to one, those which are execu-
tive to another, and those which are judicial to another; and no
person, or collection of persons, being of one of these depart-
ments, shall exercise any power properly attached to either of
the others, except in the instances herein expressly permitted.

ARTICLE III.

LEGISLATIVE DEPARTMENT.

Section 1. The legislative power of this State shall be
vested in a Senate and House of Representatives, which to-
gether shall be styled "The Legislature of the State of Texas."

Sec. 2. The Senate shall consist of thirty-one members, and
shall never be increased above this number. The House of
Representatives shall consist of ninety-three members, until the
first apportionment after the adoption of this Constitution,
when, or at any apportionment thereafter, the number of Rep-
resentatives may be increased by the Legislature, upon the ra-
tio of not more than one Representative for every fifteen thou-

Appendix 343

sand inhabitants ; provided the number of Bepresentatives shall
never exceed one hundred and fifty.

Sec. 3. The Senators shall be chosen by the qualified elect-
ors for the term of four years, but a new Senate shall be chosen
after every apportionment, and the Senators elected after each
apportionment shall be divided by lot into two classes. The
seats of the Senators of the first class shall be vacated at the
expiration of the first two years and those of the second class
at the expiration of four years, so that one-half of the Sen-
ators shall be chosen biennially thereafter.

Sec. 4. The members of the House of Bepresentatives shall
be chosen by the qualified electors, and their term of office shall
be two years from the day of their election.

Sec. 5. The Legislature shall meet every two years, at such
times as may be provided by law, and at other times when
convened by the Governor.

Sec. 6. No person shall be a Senator unless he be a citizen
of the United States, and at the time of his election a qualified
elector of this State, and shall have been a resident of this
State five years next preceding his election, and the last year
thereof a reisdent of the district for which he shall be chosen,
and shall have attained the age of twenty-six years.

Sec. 7. No person shall be a Eepresentative unless he be a
citizen of the United States, and at the time of his election a
qualified elector of this State, and shall have been a resident
of this State two years next preceding his election, the last
year thereof a resident of the district for which he shall be
chosen, and shall have attained the age of twenty-one years.

Sec. 8. Each House shall be the judge of the qualifications
and election of its own members ; but contested elections shall be
determined in such manner as shall be provided by law.

Sec. 9. The Senate shall, at the beginning and close of each
session, and at such other times as may be necessary, elect one
of its members President pro tempore, who shall perform the
duties of the Lieutenant-Governor in any case of absence or
disability of that officer, and whenever the said office of Lieu-
tenant-Governor shall be vacant. The House of Bepresenta-
tives shall, when it first assembles, organize temporarily, and
thereupon proceed to the election of a Speaker from its own

344 Appendix

members; and each. House shall choose its other officers.

Sec. 10. Two-thirds of each House shall constitute a quo-
rum to do business, but a smaller number may adjourn from
day to day, and compel the attendance of absent members, in
such manner and under such penalties as each House may pro-
vide.

Sec. 11. Each House may determine the rules of its own
proceedings, punish members for disorderly conduct, and, with
the consent of two-thirds, expel a member, but not a second
time for the same offense.

Sec. 12. Each House shall keep a journal of its proceedings
and publish the same; and the yeas and nays of the members
of either House on any question shall, at the desire of any
three members present, be entered on the Journals.

Sec. 13. When vacancies occur in either House, the Gover-
nor, or the person exercising the power of the Governor, shall
issue writs of election to fill such vacancies; and should the
Governor fail to issue a writ of election to fill any such va-
cancy within twenty days after it occurs, the returning officer
of the district in which such vacancy may have happened shall
be authorized to order an election for that purpose.

Sec. 14. Senators and Representatives shall, except in cases
of treason, felony, or breach of the peace, be privileged from
arrest during the session of the Legislature, and in going to and
coming from the same, allowing one day for every twenty miles
such member may reside from the place at which the Legisla-
ture is convened.

Sec. 15. Each House may punish, by imprisonment, during
its sessions, any person not a member, for disrespectful or dis-
orderly conduct in its presence, or for obstructing any of its
proceedings; provided, such imprisonment shall not, at any one
time, exceed forty-eight hours.

Sec. 16. The sessions of each House shall be open, except
the Senate when in executive session.

Sec. 17. Neither House shall, without the consent of the
other, adjourn for more than three days, nor to any other place
than that where the Legislature may be sitting.

Sec. 18. No Senator or Representative shall, during the
term for which he may be eleeted, be eligible to any civil office

Appendix 345

of profit under this State which shall have been created or the
emoluments of which may have been increased during such term ;
no member of either House shall, during the term for which he
is elected, be eligible to any office or place, the appointment to
which may be made, in whole or in part, by either branch of
the Legislature; and no member of either House shall vote for
any other member for any office whatever, which may be filled
by a vote of the Legislature, except in such cases as are in this
Constitution provided. Nor shall any member of the Legisla-
ture be interested, either directly or indirectly, in any contract
with the State, or any county thereof, authorized by any law
passed during the term for which he shall have been elected.

Sec. 19. No judge of any court, Secretary of State, Attor-
ney-General, clerk of any court of record, or any person hold-
ing a lucrative office under the United States, or this State, or
any foreign government, shall, during the term for which he
is elected or appointed, be eligible to the Legislature.

Sec. 20. No person who at any time may have been a col-
lector of taxes, or who may have been otherwise entrusted with
public money, shall be eligible to the Legislature, or to any
office of profit or trust under the State government until he
shall have obtained a discharge for the amount of such collec-
tions, or for all public moneys with which he may have been
entrusted.

Sec. 21. No member shall be questioned in any other place
for words spoken in debate in either House.

Sec. 22. A member who has a personal or private interest
in any measure or bill proposed or pending before the Legisla-
ture, shall disclose the fact to the House of which he is a
member, and shall not vote thereon.

Sec. 23. If any Senator or Eepresentative remove his res-
idence from the district or county for which he was elected,
his office shall thereby become vacant, and the vacancy shall be
filled as provided in Section 13 of this article.

Sec. 24. The members of the Legislature shall receive from
the public treasury such compensation for their services as
may from time to time be provided by law, not exceeding five
dollars per day for the first sixty days of each session; and af-
ter that not exceeding two dollars per day for the remainder of

346 Appendix

the session; except the first session held under this Constitu-
tion, when they may receive not exceeding five dollars per day
for the first ninety days, and after that not exceeding two dol-
lars per day for the remainder of the session. In addition to
the per diem, the members of each House shall be entitled to
a milage in going to and returning from the seat of government,
which mileage shall not exceed five dollars for every twenty-
five miles, the distance to be computed by the nearest and most
direct route of travel by land, regardless of railways or water
routes ; and the Comptroller of the State shall prepare and pre-
serve a table of distances to each county seat now or hereafter
to be established, and by such table the mileage of each member
shall be paid; but no member shall be entitled to mileage for
any extra session that may be called within one day after the
adjournment of a regular or called session.

Sec. 25. The State shall be divided into senatorial districts
of contiguous territory according to the number of qualified
electors, as nearly as may be, and each district shall be en-
titled to elect one Senator, and no single county shall be
entitled to more than one Senator.

Sec. 26. The members of the House of Representatives shall
be apportioned among the several counties, according to the num-
ber of population in each, as nearly as may be, on a ratio ob-
tained by dividing the population of the State, as ascertained
by the most recent United States census, by the number of
members of which the House is composed ; provided, that when-
ever a single county has sufficient population to be entitled to
a Representative, such county shall be formed into a separate
representative district, and when two or more counties are re-
quired to make up the ratio of representation, such counties shall
be contiguous to each other ; and when any one county has more
than sufficient population to be entitled to one or more
Representatives, such Representative or Representatives shall
be apportioned to such county, and for any surplus of popula-
tion it may be joined in a Representative district with any
other contiguous county or counties.

Sec- 27. Elections for Senators and Representatives shall
be general throughout the State, and shall be regulated by law.

Seo. 28. The Legislature shall, at the first session after the

Appendix 347

publication of each United States decennial census, apportion
the State into Senatorial and Representative districts, agreeably
to the provisions of Sections 25 and 26 of this article; and
until the next decennial census, when the first appointment shall
be made by the Legislature, the State shall be and it is hereby
divided into Senatorial and Representative districts as provided
by an ordinance of the Convention on that subject.

PBOCEEMNGS.

Sec. 29. The enacting clause of all laws shall be, "Be it
enacted by the Legislature of the State of Texas."

Sec. 30. No law shall be passed except by bill, and no bill
shall be so amended in its passage through either House as to
change its original purpose.

Sec. 31. Bills may originate in either House, and when
passed by such House may be amended, altered or rejected by
the other.

Sec. 32. No bill shall have the force of law until it has
been read on three several days in each House, and free dis-
cussion allowed thereon ; but in cases of imperative public neces-
sity (which necessity shall be stated in a preamble, or in the
body of the bill) , four-fifths of the House in which the bill may
be pending may suspend this rule, the yeas and nays being
taken on the question of suspension, and entered upon the
journals.

Sec. 33. All bills for raising revenue shall originate in the
House of Representatives, but the Senate may amend or reject
them as other bills.

Sec. 34. After a bill has been considered and defeated by
either House of the Legislature, no bill containing the same
substance shall be passed into law during the same session.
After a resolution has been acted on and defeated, no resolution
containing the same substance shall be considered at the same
session.

Sec. 35. No bill (except general appropriation bills, which
may embrace the various subjects and accounts for and on
account of which moneys are appropriated) shall contain more
than one subject, which shall be expressed in its title. But if any

348 Appendix

subject shall be embraced in an act which shall not be expressed
in the title, such act shall be void only as to so much thereof as
shall not be so expressed.

Sec. 36. No law shall be revived or amended by reference to
its title; but in such case the act revived or the section or
sections amended shall be re-enacted and published at length.

Sec. 37. No bill shall be considered unless it has been first
referred to a committee and reported thereon; and no bill shall
be passed which has not been presented and referred to and re-
ported from a committee at least three days before the final ad-
journment of the Legislature.

Sec. 38. The presiding officer of each house shall, in the
presence of the house over which he presides, sign all bills and
joint resolutions passed by the Legislature, after their titles
have been publicly read before signing; and the fact of signing
shall be entered on the journals.

Sec. 39. No law passed by the Legislature, except the gen-
eral appropriation act, shall take effect or go into force until
ninety days after the adjournment of the session at which it
was enacted, unless, in case of an emergency, which emergency
must be expressed in a preamble or in the body of the act, the
Legislature shall, by a vote of two4hirds of all the members
elected to each house, otherwise direct; said vote to be taken
by yeas and nays, and entered upon the journals..

Sec. 40. "When the Legislature shall be convened in special
session, there shall be no legislation upon subjects other than
those designated in the proclamation of the Governor calling
such session, or presented to them by the Governor; and no
such session shall be of longer duration than thirty days.

Sec. 41. In all elections by the Senate and House of Repre-
sentatives, jointly or separately, the vote shall be given viva
voce, except in the election of their officers.

REQUIREMENTS AND LIMITATIONS.

Sec. 42. The Legislature shall pass such laws as may be
necessary to carry into effect the provisions of this Constitution.

Sec. 43. The first session of the Legislature under this Con-
stitution shall provide for revising, digesting and publishing

Appendix 349

the laws, civil and criminal; and a like revision, digest and
publication may be made every ten years thereafter; provided,
that in the adoption of and giving effect to any such digest or
revision, the Legislature shall not be limited by sections 35 and
36 of this article.

Sec. 44. The Legislature shall provide by law for the com-
pensation of all officers, servants, agents and public contractors
not provided for in this Constitution, but shall not grant extra
compensation to any officer, agent, servant or public contractors,
after such public service shall have been performed or contract
entered into for the performance of the same; nor grant, by
appropriation or otherwise, any amount of money out of the
treasury of the State, to any individual on a claim, real or pre-
tended, when the same shall not have been provided for by pre-
existing law; nor employ any one in the name of the State un-
less authorized by pre-existing law.

Sec. 45. The power to change the venue in civil and criminal
cases shall be vested in the courts, to be exercised in such man-
ner as shall be provided by law; and the Legislature shall pass
laws for that purpose.

, Sec. 46. The Legislature shall, at its first session after the
adoption of this Constitution, enact effective vagrant laws.

Sec. 47. The Legislature shall pass laws prohibiting the
establishment of lotteries and gift enterprises in this State;
as well as the sale of tickets in lotteries, gift enterprises or
other evasions involving the lottery principle, established or
existing in other States.

Sec. 48. The Legislature shall not have the right to levy
taxes or impose burdens upon the people, except to raise revenue
sufficient for the economical administration of the government,
in which may be included the following purposes :

The payment of all interest upon the bonded debt of the
State;

The erection and repairs of public buildings:

The benefit of the sinking fund, which shall not be more than
two per centum of the public debt, and for the payment of the
present floating debt of the State, including matured bonds for
the payment of which the sinking fund is inadequate;

The support of public schools, in which shall be included

350 Appendix

colleges and universities established by the State; and the
maintenance and support of the Agricultural and Mechanical
College of Texas;

The payment of the cost of assessing and collecting the
revenue; and the payment of all officers, agents and employes
of the State government, and all incidental expenses con-
nected therewith;

The support of the Blind Asylum, the Deaf and Dumb
Asylum, and the Insane Asylum; the State cemetery and the
public grounds of the State;

The enforcement of quarantine regulations on the coast of
Texas;

The protection of the frontier.

Sec. 49. No debt shall be created by or on behalf of the
State, except to supply casual deficiencies of revenues, repel
invasion, suppress insurrection, defend the State in war, or
paying existing debt ; and the debt created to supply deficiencies
in the revenue shall never exceed in the aggregate at any one
time two hundred thousand dollars.

Sec. 50. The Legislature shall have no power to give or to
lend, or to authorize the giving or lending, of the credit of the
State in aid of, or to any person, association or corporation,
whether municipal or other; or to pledge the credit of the
State, in any manner whatsoever, for the payment of the
liabilities, present or prospective, of any individual, association
of individuals, municipal or other corporations whatsoever.

Sec. 51. The Legislature shall have no power to make any
grant, or authorize the making of any grant of public money
to any individual, association of individuals, municipal or other
corporation whatsoever; provided, that this shall not be so con-
strued as to prevent the grant of aid in case of public calamity.
[Const. 1876.]

Sec. 51. The Legislature shall have no power to make any
grant, or authorize the making of any grant of public money
to any individual, association of individuals, municipal or other
corporation whatsoever ; provided, however, the Legislature may
grant aid to the establishment and maintenance of a home for
indigent and disabled Confederate soldiers or sailors who are
or may be bona fide residents of the State of Texas, under such
regulations and limitations as may be provided by law; pro-

Appendix 351

vided, that such, grant shall not exceed the sum of $100,000.00
for any one year; and provided further, that the pro-
visions of this section shall not be construed so as to
prevent the grant of aid in case of public calamity. [Adopted
Nov. 6, 1894.]

Sec. 51. The Legislature shall have no power to make any
grant or authorize the making of any grant of public money to
any individual, association of individuals, municipal or other
corporatoins whatsoever; provided, however, the Legislature
may grant aid to indigent and disabled Confederate soldiers
and sailors who came to Texas prior to January 1, 1880, and
who are either over sixty years of age, or whose disability is the
proximate result of actual service in the Confederate army for
a period of at least three months, their widows in indigent
circumstances who have never remarried, and who have been
bona fide residents of the State of Texas since March 1, 1880,
and who were married to such soldiers or sailors prior to March
1, 1866; Provided said aid shall not exceed eight dollars per
month; and provided further, that no appropriation shall ever
be made for the purpose hereinbefore specified in excess of two
hundred and fifty thousand dollars for any one year. And also
grant aid to the establishment and maintenance of a home for
said soldiers and sailors, under such regulations and limitations
as may be provided by law; provided, the grant of aid to said
home shall not exceed one hundred thousand dollars for any
one year; and no inmate of said home shall be entitled to any
other aid from the State; and provided further, that the pro-
visions of this section shall not be construed to prevent the
grant of aid in case of public calamity. [Section 51, Art. 3,
adopted December 1, 1898.]

Sec. 51. The Legislature shall have no power to make any
grant or authorize the making of any grant of public money to
any individual, association of individuals, municipal or other
corporations whatsoever; provided, however, the Legislature
may grant aid to indigent and disabled Confederate soldiers
and sailors who came to Texas prior to January 1, 1880, and
who are either over sixty years of age, or whose disability is
the preximate result of actual service in the Confederate army
for a period of at least three months, their widows in indigent
circumstances who have never remarried, and who have been
bona fide residents of the State of Texas since March 1, 1880,
and who were married to such soldiers or sailors anterior to
March 1, 1880 ; provided, said aid shall not exceed eight dollars
per month; and provided further, that no appropriation shall
ever be made for the purpose hereinbefore specified in excess
of five hundred thousand dollars for any one year. And also

352 Appendix

grant aid to the establishment and maintenance of a home for
said soldiers and sailors, under such regulations and limitations
as may be provided by law; provided, the grant of aid to said
home shall not exceed one hundred thousand dollars for any
one year; and no inmate of said home shall be entitled to any
other aid from the State; and provided, further, that the pro-
visions of this section shall not be construed to prevent the
grant of aid in case of public calamity. [Sec. 51, Art. 3,
adopted November 8, 1904.]

Sec. 51. The Legislature shall have no power to make any
grant or authorize the making of any grant of public money
to any individual, association of individuals, municipal or other
corporations whatsoever; provided, however, the Legislature
may grant aid to indigent and disabled Confederate soldier and
sailors who came to Texas prior to January 1, 1880, and who
are either over sixty years of age or whose disability is the
proximate result of actual service in the Confederate army for
a period of at least three months, their widows in indigent
circumstances who have never remarried, and who have been
bona fide residents of the State of Texas since March 1, 1880,
and who were married to such soldiers or sailors anterior to
March 1, 1880 ; provided, said aid shall not exceed eight dollars
per month; and provided further, that no appropriations shall
ever be made for the purpose hereinbefore specified in excess of
five hundred thousand dollars for any one year. And also grant
aid to the establishment and maintenance of a home for said
soldiers and sailors, their wives and widows and women who
aided in the Confederacy, under such regulations and limita-
tions as may be provided by law; provided, the grant to aid
said home shall not exceed one hundred and fifty thousand
dollars for any one year, and no inmate of said homes shall be
entitled to any other aid from the State; the Legislature may
provide for husband and wife to remain together in the home;
and provided, further, that the provisions of this section shall
not be construed to prevent the grant of aid in case of public
calamity. [Sec. 51, Art. 3, adopted Nov. 8, 1910.]

Sec. 51. The Legislature shall have no power to make any
grant or authorize the making of any grant of public money
to any individual, association of individuals, municipal or other
corporation whatsoever; provided, however, the Legislature may
grant aid to indigent and disabled Confederate soldiers and sail-
ors who came to Texas prior to January 1, 1900, and their widows
in indigent circumstances, and who have been bona fide residents
of the State of Texas since January 1, 1900, and who were

Appendix 353

married to such soldiers and sailors anterior to January 1, 1900 ;
to indigent and disabled soldiers, who under special laws of the
State of Texas, during the war between the States served for
a period of at least six months in organizations for the pro-
tection of the frontier against Indian raids or Mexican ma-
rauders, and to indigent and disabled soldiers of the militia of
the State of Texas, who were in active service for a period of
at least six months during the war between the States, to the
widows of such soldiers who are in indigent circumstances, and
who were married to such soldiers prior to January 1, 1900,
provided that word "widow" in the preceding lines of this
section shall not apply to women born since 1861, and also
to grant aid for the establishment and maintenance of a home
for said soldiers and sailors, their wives and widows, and women
who aided in the Confederacy under such regulations and lim-
itations as may be provided for by law; provided, the Legisla-
ture may provide for husband and wife to remain together in
the home.

The Legislature shall have the power to levy and collect, in
addition to all other taxes heretofore permitted by the Con-
stitution of Texas, a State ad valorem tax on property not
exceeding five cents on the one hundred dollars valuation for
the purpose of creating a special fund for the payment of
pensions for services in the Confederate Army and Navy, frontier
organizations and the militia of the State of Texas, and for
the widows of such soldiers serving in said armies, navies,
organizations, or militia. [Adopted November 5, 1912.]

Sec- 52. The Legislature shall have no power to authorize
any county, city, town or other political corporation or sub-
division of the State, to lend its credit or to grant public money
or thing of value, in aid of or to any individual, association
or corporation whatsoever; or to become a stockholder in such
corporation, association or company. [Const. 1876.]

[Sec. 52, Art. 3, adopted November 8, 1904.]
Sec. 52. The Legislature shall have no power to authorize
any county, city, town or other political corporation or sub-
division of the State, to lend its credit or to grant public
money or thing of value, in aid of or to any individual, associa-

354 Appendix

tion or corporation whatsoever; or to become a stockholder in
such corporation, association or company; provided, however,
that under legislative provision any county, any political sub-
division of a county, any number of adjoining counties, or any
political subdivision of the State, or any denned district now
or hereafter to be described and denned within the State of
Texas, and which may or may not include towns, villages or
municipal corporations, upon a vote of a two-thirds majority
of the resident property taxpayers voting thereon who are
qualified electors of such district or territory to be affected
thereby, in addition to all other debts, may issue bonds or other-
wise lend its credit in any amount not to exceed one-fourth of
the assessed valuation of the real property of such district or
territory, except that the total bonded indebtedness of any
city or town shall never exceed the limits imposed by other
provisions of this Constitution, and levy and collect such taxes
to pay the interest thereon and provide a sinking fund for the
redemption thereof, as the Legislature may authorize, and in
such manner as they may authorize the same, for the following
purposes, to-wit :

(a) The improvement of rivers, creeks and streams to pre-
vent overflows, and to permit of navigation thereof or irrigation
thereof, or in aid of such purposes.

(b) The construction and maintenance of pools, lakes, reser-
voirs, dams, canals and waterways for the purposes of irriga-
tion, drainage or navigation, or in aid thereof.

(c) The construction, maintenance and operation of macad-
amized, graveled or paved roads and turnpikes, or in aid thereof.

Sec. 53. The Legislature shall have no power to grant, or to
authorize any county or municipal authority to grant, any
extra compensation, fee or allowance to a public officer, agent,
servant or contractor, after service has been rendered, or a
contract has been entered into, and performed in whole or in
part ; nor pay, nor authorize the payment of, any claim created
against any county or municipality of the State, under any
agreement or contract made without authority of law.

Sec. 54. The Legislature shall have no power to release or
alienate any lien held by the State upon any railroad, or in
any wise change the tenor or meaning or pass any act ex-

Appendix 355

planatory thereof ; but the same shall be enforced in accordance
with the original terms upon which it was acquired.

Sec. 55. The Legislature shall have no power to release or
extinguish, or to authorize the releasing or extinguishing, in
whole or in part, the indebtedness, liability or obligation of any
incorporation or individual in this State, or to any county, or
other muncipal corporation therein.

Sec. 56. The Legislature shall not, except as otherwise pro-
vided in this Constitution, pass any local or special law,
authorizing —

The creation, extension or impairing of liens ;

Regulating the affairs of counties, cities, towns, wards or
school districts;

Changing the names of persons or places;

Changing the venue in civil or criminal cases;

Authorizing the laying out, opening, altering or maintaining
of roads, highways, streets or alleys;

Relating to ferries or bridges, or incorporating ferry or
bridge companies, except for the erection of bridges crossing
streams which form boundaries between this and any other
State ;

Vacating roads, town plats, streets or alleys;

Relating to cemeteries, graveyards, or public grounds not of
the State.

Authorizing the adoption or legitimation of children ;

Locating or changing county seats;

Incorporating cities, towns or villages, or changing their
charters ;

For the opening and conducting of elections, or fixing or
changing the places of voting;

Granting divorces;

Creating offices, or prescribing the powers and duties of of-
ficers in counties, cities, towns, election or school districts;

Changing the law of descent or succession;

Regulating the practice or jurisdiction of, or changing the
rules of evidence in any judicial proceeding or inquiry before
courts, justices of the peace, sheriffs, commissioners, arbitrators
or other tribunals, or providing or changing methods for the

356 Appendix

collection of debts, or the enforcing of judgments, or prescrib-
ing the effect of judicial sales of real estate ;

Regulating the fees, or extending the powers and duties of
aldermen, justices of the peace, magistrates or constables;

Regulating the management of public schools, the building or
repairing of school houses, and the raising of money for such
purposes ;

Fixing the rate of interest;

Affecting the estates of minors, or persons under disability;

Remitting fines, penalties and forfeitures, and refunding
moneys legally paid into the treasury;

Exempting property from taxation;

Regulating labor, trade, mining and manufacturing;

Declaring any named person of age;

Extending the time for the assessment or collection of taxes,
or otherwise relieving any assessor or collector of taxes from
the due performance of his official duties, or his securities from
liability ;

Giving effect to informal or invalid wills or deeds ;

Summoning and impaneling grand or petit juries ;

For limitation of civil or criminal actions;

For incorporating railroads or other works of internal im-
provements ;

And in all other cases where a general law can be made
applicable, no local or special law shall be enacted; provided
that nothing herein contained shall be construed to prohibit
the Legislature from passing special laws for the preservation
of the game and fish of this State in certain localities.

Sec. 57. No local or special law shall be passed unless notice
of the intention to apply therefor shall have been published
in the locality where the matter or thing to be affected may be
situated, which notice shall state the substance of the con-
templated law, and shall be published at least thirty days prior
to the introduction into the Legislature of such bill and in the
manner to be provided by law. The evidence of such notice
having been published shall be exhibited in the Legislature
before such act shall be passed.

Sec. 58. The Legislature shall hold its sessions in the city
of Austin, which is hereby declared to be the seat of govern-
ment.

Appendix 357

ARTICLE IV.

EXECUTIVE DEPARTMENT.

Section 1. The executive department of the State shall con-
sist of a Governor, who shall be the chief executive officer of the
State; a Lieutenant-Governor, Secretary of State, Comptroller
of Public Accounts, Treasurer, Commissioner of the General
Land Office, and Attorney-General.

Sec. 2. All the above officers of the executive department
(except Secretary of State) shall be elected by the qualified
voters of the State at the time and places of election for mem-
bers of the Legislature.

Sec. 3. The returns of every election for said executive
officers, until otherwise provided by law, shall be made out,
sealed up and transmitted, by the returning officers prescribed
by law, to the seat of government, directed to the Secretary of
State, who shall deliver the same to the Speaker of the House
of Representatives, as soon as the Speaker shall be chosen ; and
the said Speaker shall, during the first week of the session of
the Legislature, open and publish them in the presence of both
Houses of the Legislature. The person voted for at said election
having the highest number of votes for each of said offices,
respectively, and being constitutionally eligible, shall be de-
clared by the Speaker, under sanction of the Legislature, to be
elected to said office. But if two or more persons shall have the
highest and an equal number of votes for either of said offices,
one of them shall be immediately chosen to such office by a joint
vote of both Houses of the Legislature. Contested elections for
either of said offices shall be determined by both Houses of the
Legislature in joint session.

Sec. 4. The Governor shall be installed on the first Tuesday
after the organization of the Legislature, or as soon thereafter
as practicable, and shall hold his office for the term of two years,
or until his successor shall be duly installed. He shall be at
least thirty years of age, a citizen of the United States, and
shall have resided in this State at least five years immediately
preceding his election.

Sec. 5. He shall, at stated times, receive as compensation

358 Appendix

for his services an annual salary of four thousand dollars, and
no more, and shall have the use and occupation of the Gov-
ernor's Mansion, fixtures and furniture.

Sec. 6. During the time he holds the office of Governor he
shall not hold any other office, civil, military or corporate; nor
shall he practice any profession, and receive compensation,
reward, fee, or the promise thereof, for the same; nor receive
any salary, reward or compensation, or the promise thereof,
from any person or corporation, for any service rendered or
performed during the time he is Governor, or to be thereafter
rendered or performed.

Sec. 7. He shall be commander-in-chief of the military forces
of the State, except when they are called into actual service
for the United States. He shall have power to call forth the
militia to execute the laws of the State, to suppress insurrection,
repel invasion, and protect the frontier from hostile incursions
by Indians or other predatory bands.

Sec. 8. The Governor may, on extraordinary occasions,
convene the Legislature at the seat of government, or at a
different place in case that should be in possession of the public
enemy, or in case of the prevalence of disease thereat. His
proclamation therefor shall state specifically the purpose for
which the Legislature is convened.

Sec. 9. The Governor shall, at the commencement of each
session of the Legislature, and at the close of his term of office,
give the Legislature information, by message, of the condition
of the State; and he shall recommend to the Legislature such
measures as he shall deem expedient. He shall account to the
Legislature for all public moneys received and paid out by him
from any funds subject to his order, with vouchers; and shall
accompany his message with a statement of the same. And at
the commencement of each regular session he shall present
estimates of the amount of money required to be raised by
taxation for all purposes.

Sec. 10. He shall cause the laws to be faithfully executed;
and shall conduct, in person, or in such manner as shall be
prescribed by law, all intercourse and business of the State
with other States and with the United States.

Sec. 11. In all criminal cases, except treason and impeach-

Appendix 359

ment, he shall have power, after conviction, to grant reprieves,
commutations of punishment, and pardons ; and under such
rules as the Legislature may prescribe, he shall have power to
remit fines and forfeitures. "With the advice and consent of
the Senate, he may grant pardons in cases of treason, and to
this end he may respite a sentence therefor, until the close of
the succeeding session of the Legislature; provided, that in
all cases of remissions of fines and forfeitures, or grants of re-
prieve, commutation of punishment or pardon, he shall file in
the office of the Secretary of State his reasons therefor.

Sec. 12. All vacancies in State or district offices, except
members of the Legislature, shall be filled, unless otherwise
provided by law, by appointment of the Governor, which ap-
pointment, if made during its session, shall be with the advice
and consent of two-thirds of the Senate present. If made
during the recess of the Senate, the said appointee, or some
other person to fill such vacancy shall be nominated to the Senate
during the first ten days of its session. If rejected, said office
shall immediately become vacant and the Governor shall, with-
out delay, make further nominations, until a confirmation takes
place. But should there be no confirmation during the session
of the Senate, the Governor shall not thereafter appoint any
person to fill such vacancy who has been rejected by the Senate ;
but may apoint some other person to fill the vacancy until the
next session of the Senate, or until the regular election to said
office, should it sooner occur. Appointments to vacancies in
offices elective by the people shall only continues until the first
general election thereafter.

Sec. 13. During the session of the Legislature the Governor
shall reside where its sessions are held, and at all other times
at the seat of government, except when by act of the Legisla-
ture he may be required or authorized to reside elsewhere.

Sec. 14. Every bill which shall have passed both Houses
of the Legislature shall be presented to the Governor for his
approval. If he approve, he shall sign it; but if he disapprove
it, he shall return it, with his objection, to the house in which
it originated, which house shall enter the objection at large
upon its journal, and proceed to reconsider it. If, after such
reconsideration, two-thirds of the members present agree to

360 Appendix

pass the bill, it shall be sent, with the objections, to the other
house, by which likewise it shall be reconsidered; and if ap-
proved by two-thirds of the members of that house, it shall
become a law ; but in such cases the votes of both Houses shall
be determined by yeas and nays, and the names of the mem-
bers voting for and against the bill shall be entered on the
Journal of each House, respectively. If any bill shall not be
returned by the Governor with his objections within ten days
(Sundays excepted) after it shall have been presented to him,
the same shall be a law in like manner as if he had signed
it, unless the Legislature, by its adjournment, prevent its
return; in which case it shall be a law unless he shall file the
same, with his objections, in the office of the Secretary of
State, and give notice thereof by public proclamation within
twenty days after such adjournment. If any bill presented to
the Governor contains several items of appropriation, he may
object to one or more of such items, and approve the other
portion of the bill. In such case he shall append to the bill,
at the time of signing it, a statement of the items to which
he objects, and no item so objected to shall take effect. If
the Legislature be in session, he shall transmit to the house in
which the bill originated a copy of such statement, and the
items objected to shall be separately considered. If, on recon-
sideration, one or more of such items be approved by two-thirds
of the members present of each house, the same shall be part of
the law, notwithstanding the objections of the Governor. If
any such bill, containing several items of appropriation, not
having been presented to the Governor ten days (Sundays ex-
cepted) prior to adjournment, be in the hands of the Governor
at the time of adjournment, he shall have twenty days from
such adjournment within which to file objections to any items
thereof, and make proclamation of the same, and such item or
items shall not take effect.

Sec. 15. Every order, resolution or vote to which the con-
currence of both houses of the Legislature may be necessary,
except on questions of adjournment, shall be presented to the
Governor, and, before it shall take effect, shall be approved by
him; or, being disapproved, shall be repassed by both houses;

Appendix 361

and all the rules, provisions and limitations shall apply thereto as
prescribed in the last preceding section in the case of a bill.

Sec. 16. There shall also be a Lieutenant-Governor, who
shall be chosen at every election for Governor, by the same
electors, in the same manner, continue in office for the same
time, and possess the same qualifications. The electors shall
distinguish for whom they vote as Governor and for whom as
Lieutenant-Governor. The Lieutenant-Governor shall, by virtue
of his office, be President of the Senate, and shall have, when
in Committee of the "Whole, a right to debate and vote on all
questions; and when the Senate is equally divided, to give the
casting vote. In case of the death, resignation, removal from
office, inability or refusal of the Governor to serve, or of his
impeachment or absence from the State, the Lieutenant-Gov-
ernor shall exercise the powers and authority appertaining to
the office of Governor until another be chosen at the periodical .
election and be duly qualified ; or until the Governor impeached,
absent or disabled shall be acquitted, return or his disability
be removed.

Sec. 17. If, during the vacancy in the office of Governor,
the Lieutenant-Governor should die, resign, refuse to serve, or
be removed from office, or be unable to serve, or if he shall be
impeached or absent from the State, the President of the Sen-
ate, for the time being, shall, in like manner, administer the
government until he shall be superseded by a Governor or
Lieutenant-Governor. The Lieutenant-Governor shall, while he
acts as President of the Senate, receive for his services the
same compensation and milage which shall be allowed to the
members of the Senate, and no more; and during the time he
administers the government as Governor, he shall receive in like
manner the same compensation which the Governor would have
received had he been employed in the duties of his office, and
no more. The President, for the time being, of the Senate,
shall, during the time he administers the government, receive
in like manner the same compensation which the Governor
would have received, had he been employed in the duties of
his office.

Sec. 18. The Lieutenant-Governor or President of the Sen-
ate, succeeding to the office of Governor, shall, during the entire

362 Appendix

term to which he may succeed, be under all the restriction and
inhibitions imposed in this Constitution on the Governor.

Sec. 19. There shall be a seal of the State, which shall be
kept by the Secretary of State, and used by him officially under
the direction of the Governor. The seal of the State shall be a
star of five points, encircled by olive and live oak branches,
and the words "The State of Texas."

Sec. 20. All commissions shall be in the name and by the
authority of the State of Texas, sealed with the State seal,
signed by the Governor, and attested by the Secretary of State.

Sec. 21. There shall be a Secretary of State, who shall be
appointed by the Governor, by and with the advice and consent
of the Senate, and who shall continue in office during the term
of service of the Governor. He shall authenticate the publica-
tion of the laws, and keep a fair register of all official acts
and proceedings of the Governor, and shall, when required, lay
the same, and all papers, minutes and vouchers relative thereto,
before the Legislature or either house thereof, and shall per-
form such other duties as may be required of him by law. He
shall receive for his services an annual salary of two thousand
dollars, and no more.

Sec. 22. The Attorney-General shall hold his office for two
years and until his successor is duly qualified. He shall repre-
sent the State in all suits and pleas in the Supreme Court of
the State in which the State may be a party, and shall especially
inquire into the charter rights of all private corporations, and,
from time to time, in the name of the State, take such actions
in the courts as may be proper and necessary to prevent any
private corporation from exercising any power, or demanding
or collecting any species of taxes, toll, freight or wharfage
not authorized by law. He shall, whenever sufficient cause ex-
ists, seek a judicial forfeiture of such charters, unless other-
wise expressly directed by law, and give legal advice in writing
to the Governor and other executive officers, when requested by
them, and perform such other duties as may be required by
law. He shall reside at the seat of government during his con-
tinuance in office. He shall receive for his services an annual
salary of two thousand dollars, and no more, besides such fees
as may be prescribed by law; provided, that the fees which

Appendix 363

he shall receive shall not amount to more than two thousand
dollars annually.

Sec. 23. The Comptroller of Public Accounts, the Treasurer
and the Commissioner of the General Land Office, shall each
hold office for the term of two years, and until his successor is
qualified; receive an annual salary of two thousand and five
hundred dollars, nad no more ; reside at the capital of the State
during his continuance of office, and perform such other duties
as are or may be required of him by law. They and the Secretary
of State shall not receive to their own use any fees, costs or per-
quisites of office. All fees that may be payable by law for any
service performed by any officer specified in this section, or in
his office, shall be paid, when received, into the State treasury.

Sec. 24. An account shall be kept by the officers of the
executive department, and by all officers and managers of
State institutions, of all moneys and choses in action received
and disbursed or otherwise disposed of them, severally, from
all sources, and for every service performed; and a semi-
annual report thereof shall be made to the Governor under oath.
The Governor may at any time require information in writing
from any and all of said officers or managers, upon any subject
relating to the duties, condition, management and expenses of
their respective offices and institutions, which information shall
be required by the Governor under oath, and the Governor may
also inspect their books, accounts, vouchers and public funds;
and any officer or manager who at any time shall wilfully
make a false report or give false information, shall be guilty of
perjury, and so adjudged and punished accordingly, and re-
moved from office.

Sec. 25. The Legislature shall pass efficient laws facilitating
the investigation of breaches of trust and duty by all custodians
of public funds, and providing for their suspension from office
on reasonable cause shown, and for the appointment of
temporary incumbents of their offices during such suspension.

Sec. 26. The Governor, by and with the advice and consent
of two-thirds of the Senate, shall appoint a convenient number
of notaries public for each county, who shall perform such
duties as are now or may be prescribed by law.

364 Appendix

ARTICLE V.

JUDICIAL DEPARTMENT.

Section 1. The judicial power of this State shall be vested
in one Supreme Court, in a Court of Appeals, in district
courts, in county courts, in commissioners courts, in courts of
justice of the peace, and in such other courts as may be estab-
ished by law. The Legislature may establish criminal district
courts with such jurisdiction as it may prescribe, but no such
courts shall be established unless the district includes a city
containing at least thirty thousand inhabitants, as ascertained
by the census of the United States or other official census;
provided, such town or city shall support said criminal district
courts when established. The Criminal District Court of Gal-
veston and Harris Counties shall continue with the district,
jurisdiction and organization now existing by law, until other-
wise provided by law.

Sec. 2. The Supreme Court shall consist of a chief justice
and two associate justices, any two of whom shall constitute
a quorum, and the concurrence of two judges shall be neces-
sary to the decision of a case. No person shall be eligible to
the office of chief justice or associate justice of the Supreme
Court unless he be at the time of his election a citizen of the
United States and of this State, and unless he shall have at-
tained the age of thirty years, and shall have been a practicing
lawyer or judge of a court in this State, or such lawyer and
judge together, at least seven years. Said chief justice and
associate justices shall be elected by the qualified voters of the
State at a general election, shall hold their offices for six years,
and shall each receive an annual salary of not more than three
thousand five hundred and fifty dollars. In case of a vacancy
in the office of chief justice or associate justice of the Supreme
Court, the Governor shall fill the vacancy until the next general
election for State officers, and at such general election the
vacancy for the unexpired term shall be filled by election by
the qualified voters of the State.

Sec. 3. The Supreme Court shall have appellate jurisdiction
only, which shall be co-extensive with the limits of the State;
but shall only extend to civil cases of which the district courts
have original or appellate jurisdiction. Appeals may be allowed
from interlocutory judgments of the district courts, in such
cases and under such regulations as may be provided by law.
The Supreme Court and the judges thereof shall have power
to issue, under such regulations as may be prescribed by law,

Appendix 365

the writ of mandamus and all other writs necessary to enforce
the jurisdiction of said court. The Supreme Court shall have
power, upon affidavit or otherwise, as by the court may be
thought proper, to ascertain such matters of fact as may be
necessary to the proper exercise of its jurisdiction. The Supreme
Court shall sit for the transaction of business from the first
Monday in October until the last Saturday in June of every
year, at the seat of government, and not more than two other
places in the State.

Sec. 4. The Supreme Court shall appoint a clerk for each
place at which it may sit, and each of said elerks shall give
bond in such manner as is now or may hereafter be required
by law; shall hold his office for four years, and shall be sub-
ject to removal by the said court for good cause, entered of
record on the minutes of said court.

Sec. 5. The Court of Appeals shall consist of three judges,
any two of whom shall constitute a quorum, and the concur-
rence of two judges shall be necessary to a decision of said
court. They shall be elected by the qualified voters of the State
at a general election. They shall be citizens of the United
States and of this State ; shall have arrived at the age of thirty
years at the time of election; each shall have been a practicing
lawyer or a judge of a court in this State, or such judge and
lawyer together, for at least seven years. Said judges shall hold
their offices for a term of six years, and each of them shall
receive an annual salary of three thousand filve hundred and
fifty dollars, which shall not be increased or diminished during
their term of office.

Sec. 6. The Court of Appeals shall have appellate jurisdiction,
coextensive with the limits of the State, in all criminal eases, of
whatever grade, and in all civil cases unless hereafter otherwise
provided by law, of which the county courts have original or
appellate jurisdiction. In civil cases its opinions shall not be
published unless the publication of such opinions be required
by law. The Court of Appeals and the judges thereof shall
have power to issue the writ of habeas corpus; and under such
regulations as may be prescribed by law, issue such writs as
may be necessary to enforce its own jurisdiction. The Court
of Appeals shall have power, upon affidavits, or otherwise, as
by the court may be thought proper, to ascertain such matters
of fact as may be necessary to the exercise of its jurisdiction.
The Court of Appeals shall sit, for the transaction of business
from the first Monday of October until the last Saturday of
June of every year, at the capital, and at not more than two
other places in the State, at which the Supreme Court shall
hold its sessions. The court shall appoint a clerk for each place

366 Appendix

at which it may sit, and each of said clerks shall give bond in
such manner as is now or may hereafter be required by law;
shall hold his office for four years, and shall be subject to re-
moval by the said court for good cause, entered of record on the
minutes of said court.

Sec. 7. The State shall be divided into twenty-six judicial
districts, which may be increased or diminished by the Legisla-
ture. For each district there shall be elected by the qualified
voters thereof, at a general election for members of the Legisla-
ture, a judge, who shall be at least twenty-five years of age,
and shall be a citizen of the United States, shall have been a
practicing attorney or a judge of a court in this State for the
period of four years, and shall have resided in the district in
which he is elected for two years next before his election; shall
reside in his district during his term of office; shall hold his
office for the term of four years; shall receive an annual salary
of twenty-five hundred dollars, which shall not be increased
or diminished during his term of service; and shall hold the
regular terms of court at one place in each county in the dis-
trict twice in each year, in such manner as may be prescribed
by law. The Legislature shall have power by general act to
authorize the holding of special terms, when necessary, and to
provide for holding more than two terms of the court in any
county, for the dispatch of business; and shall provide for the
holding of district courts when the judge thereof is absent, or
from any cause disabled or disqualified from presiding.

Sec. 8. The district court shall have original jurisdiction in
criminal eases of the grade of felony; of all suits in behalf of
the State to recover penalties, forfeitures and escheats; of all
cases of divorce ; in cases of misdemeanors involving official mis-
conduct; of all suits to recover damages for slander or defama-
tion of character; of all suits for the trial of title to land, and
for the enforcement of liens thereon; of all suits for trial of
right to property levied on by virtue of writ of execution, se-
questration or attachment, when the property levied on shall
be equal to or exceed in value five hundred dollars; and of all
suits, complaints or pleas whatever, without regard to any dis-
tinction between law and equity, when the matter in controversy
shall be valued at or amount to five hundred dollars exclusive
of interest ; and the said courts and the judges thereof shall have
power to issue writs of habeas corpus in felony cases, madamus,
injunction, certiorari, and all writs necesary to enforce their
jurisdiction. The district court shall have appellate jurisdic-
tion and general control in probate matters over the
county court established in each county, for appointing guard-
ians, granting letters testamentary and of administration for

Appendix 367

settling the accounts of executors, administrators and guardians
and for the transaction of business appertaining to states; and
original jurisdiction and general control over executors, ad-
ministrators, guardians and minors, under such regulations as
may be prescribed by the Legislature. All cases now pending
in the Supreme Court, of which the Court of Appeals has ap-
pellate jurisdiction under the provisions of this article, shall,
as soon as practicable after the establishment of said Court of
Appeals, be certified and the records transmitted to the Court of
Appeals, and shall be decided by such Court of Appeals as if
the same had been originally appealed to such court. [Const.
1876.]

[Sees. 1, 2, 3, 4, 5, 6, 7, 8, Art. 5, declared adopted Sept. 22, 1891.]

Section 1. The judicial powers of this State shall be vested
in one Supreme Court, in Courts of Civil Appeals, in a Court
of Criminal Appeals, in district courts, in county courts, in
commissioners courts, in court of justices of the peace, and in
such other courts as may be provided by law. The Criminal
District Court of Galveston and Harris counties shall continue
with the district, jurisdiction and organization now existing by
law until otherwise provided by law. The Legislature may
establish such other courts as it may deem necessary, and pre-
scribe the jurisdiction and organization thereof, and may con-
form the jurisdiction of the district and other inferior courts
thereto.

Sec. 2. The Supreme Court shall consist of a chief justice
and two associate justices, any two of whom shall constitute a
quorum, and the concurrence of two judges shall be necessary
to the decision of a case. No person shall be eligible to the office
of Chief Justice or Associate Justice of the Supreme Court un-
less he be, at the time of his election, a citizen of the United
States and of this State, and unless he shall have attained the
age of thirty years, and shall have been a practicing lawyer or a
judge of a court, or such lawyer and judge together, at least
seven years. Said Chief Justice and Associate Justices shall be
elected by the qualified voters of the State at a general election,
shall hold their offices six years,' or until their successors are
elected and qualified, and shall each reecive an annual salary
of four thousand dollars until otherwise provided by law. In

368 Appendix

case of a vacancy in the office of Chief Justice of the Supreme
Court, the Governor shall fill the vacancy until the next general
election for State officers, and at such general election the
vacancy for the unexpired term shall be filled by election by the
qualified voters of the State. The judges of the Supreme Court
who may be in office at the time this amendment takes effect,
shall continue in office until the expiration of their term of
office under the present Constitution, and until their successors
are elected and qualified.

Sec. 3. The Supreme Court shall have appellate jurisdiction
only, except as herein specified, which shall be coextensive with
the limits of the State. Its appellate jurisdiction shall extend
to questions of law arising in cases in which the Courts of Civil
Appeals have appellate jurisdiction, under such restrictions and
regulations as the Legislature may prescribe. Until otherwise
provided by law the appellate jurisdiction of the Supreme Court
shall extend to questions of law arising in the cases in the Courts
of Civil Appeals in which the judges of any Court of Civil Ap-
peals may disagree, or where the several Courts of Civil Ap-
peals may hold differently on the same question of law, or
where a statute of the State is held void. The Supreme Court
and the justices thereof shall have power to issue writs of
habeas corpus as may be prescribed by law, and under such
regulations as may be prescribed by law the said courts and
the justices thereof may issue the writs of mandamus, procedendo,
certiorari, and such other writs as may be necessary to enforce
its jurisdiction. The Legislature may confer original jurisdic-
tion on the Supreme Court to issue writs of quo warranto and
mandamus in such cases as may be specified except as against
the Governor of the State. The Supreme Court shall also have
power, upon affidavit or otherwise as by the court may be de-
termined, to ascertain such matters of fact as may be necessary
to the proper exercise of its jurisdiction. The Supreme Court
shall sit for the transaction of business from the first Monday
in October of each year until the last Saturday of June in the
next year, inclusive, at the capital of the State. The Supreme
Court shall appoint a clerk, who shall give bond in such manner
as is now or may hereafter be required by law, and he may hold
his office for four years, and shall be subject to removal by said

Appendix 369

court for good cause, entered of record on the minutes of said
court, who shall receive such compensation as the Legislature
may provide.

Sec. 4. The Court of Criminal Appeals shall consist of three
judges, any two of whom shall constitute a quorum, and the con-
currence of two judges shall be necessary to a decision of said
court. Said judges shall have the same qualifications and receive
the same salaries as the judges of the Supreme Court. They
shall be elected by the qualified voters of the State at a general
election, and shall hold their offices for a term of six years. In
case of a vacancy in the office of a judge of the Court of Crimi-
nal Appeals the Governor shall fill such vacancy by appointment
for the unexpired term. The judges of the Court of Appeals who
may be in office at the time when this amendment takes effect
shall continue in office until the expiration of their term of
office under the present Constitution and laws as judges of the
Court of Criminal Appeals.

Sec. 5. The Court of Criminal Appeals shall have appellate
judisdiction coextensive with the limits of the State in all
criminal cases of whatever grade, with such exceptions and under
such regulations as may be prescribed by law. The Court of
Criminal Appeals and the judges thereof shall have the power
to issue the writ of Tiabeas corpus, and, under such regulations
as may be prescribed by law, issue such writs as may be necessary
to enforce its own jurisdiction. The Court of Criminal Appeals
shall have power, upon affidavit or otherwise, to ascertain such
matters of fact as may be necessary to the exercise of its juris-
diction. The Court of Criminal Appeals shall sit for the trans-
action of business from the first Monday in October to the last
Saturday of June in each year at the State capital and two other
places (or the capital city) if the Legislature shall hereafter
so provide. The Court of Criminal Appeals shall appoint a
clerk at such place at which it may sit, and each clerk shall give
bond in such manner as is now or may hereafter be required by
law, and who shall hold his office for four years unless sooner re-
moved by the court for good cause, entered of record on the
minutes of said court.

Sec. 6. The Legislature shall, as soon as practicable after the
adoption of this amendment, divide the State into not less than

370 Appendix

two nor more than three supreme judicial districts, and there-
after into such additional districts as the increase of population
and business may require, and shall establish a Court of Civil
Appeals in each of said districts, which shall consist of a chief
justice and two associate justices, who shall have the qualifica-
tions as herein prescribed for justices of the Supreme Court.
Said Court of Civil Appeals shall have appellate jurisdiction
coextensive with the limits of their respective districts, which
shall extend to all civil cases of which the district courts or
county courts have orginal or appellate jurisdiction, under such
restrictions and regulations as may be prescribed by law; pro-
vided, that the decision of such courts shall be conclusive of all
questions of fact brought before them on appeal or error. Each
of said Courts of Civil Appeals shall hold its sessions at a place
in its district to be designated by the Legislature, and at such
time as may be prescribed by law. Said justices shall be elected
by the qualified voters of their respective districts, at a general
election, for a term of six years, and shall receive for their
services the sum of three thousand five hundred dollars per
annum until otherwise provided by law. Said courts shall have
such other jurisdiction, original and appellate, as may be pre-
scribed by law. Bach Court of Civil Appeals shall appoint a
clerk in the same manner as the clerk of the Supreme Court,
which clerk shall receive such compensation as may be fixed by
law. Until the organization of the Courts of Civil Appeals and
Criminal Appeals, as herein provided for, the jurisdiction, power
and organization and location of the Supreme Court, the Court
of Appeals and the Commission of Appeals shall continue as they
were before the adoption of this amendment. All civil cases
which may be pending in the Court of Appeals shall, as soon
as practicable after the organization of the Courts of Civil Ap-
peals, be certified to and the records thereof transmitted to the
proper Courts of Civil Appeals, to be decided by said courts.
At the first session of the Supreme Court, the Court of Criminal
Appeals, and such of the Courts of Civil Appeals which may be
hereafter created under this article after the first election of the
judges of such courts under this amendment, the terms of office
of the judges of each court shall be divided into three classes,
and the justices thereof shall draw for the different classes.

Appendix 371

Those who shall draw class No. 1 shall hold their offices for two
years, those drawing class No. 2 shall hold their offices for four
years, and those who may draw class No. 3 shall hold their offices
for six years from the date of their election and until their
successors are elected and qualified; and thereafter each of the
said judges shall hold his office for six years, as provided by this
Constitution.

Sec. 7. The State shall be divided into as many judicial dis-
tricts as may now or hereafter be provided by law, which may
be increased or diminished by law. For each district there shall
be elected by the qualified voters thereof, at a general election, a
judge, who shall be a citizen of the United States and of this
State, who shall have been a practicing lawyer of this State
or a judge of a court in this State for four years next preceding
his election ; who shall have resided in the district in which he was
elected for two years next preceding his election; who shall re-
side in his district during his term of office ; who shall hold his
office for the period of four years, and shall receive for his
services an annual salary of two thousand five hundred dollars
until otherwise changed by law. He shall hold the regular
terms of his court at the county seat of each county in his
district at least twice in each year, in such manner as may be
prescribed by law. The Legislature shall have power by general
or special laws to authorize the holding of special terms of the
court, or the holding of more than two terms in any county
for the dispatch of business. The Legislature shall also provide
for the holding of district court when the judge thereof is
absent, or is from any cause disabled or disqualified from pre-
siding. The district judges who may be in office when this
amendment takes effect shall hold their offices until their re-
spective terms shall expire under their present election or ap-
pointment.

Sec. 8. The district court shall have original jurisdiction of
all criminal cases of the grade of felony; in all suits in behalf
of the State to recover penalties, forfeitures and escheats; of
all cases of divorce; of all misdemeanors involving official mis-
conduct; of all suits to recover damages for slander or defama-
tion of character; of all suits for trial of title to land and for
the enforcement of liens thereon ; of all suits for the trial of the

372 Appendix

right of property levied upon by Virtue of any writ of execution
sequestration or attachment when the property levied on shall
be equal to or exceed in value five hundred dollars ; of all suits,
complaints or pleas whatever, without regard to any distinction
between law and equity, when the matter in controversy shall be
valued at or amount to five hundred dollars exclusive of interest ;
of contested elections, and said court and the judges thereof shall
have power to issue writs of habeas corpus, mandamus, injunction
and certiorari, and all writs necessary to enforce their jurisdic-
tion. The district court shall have appellate jurisdiction and
general control in probate matters over the county court es-
tablished in each county for appointing guardians, granting let-
ters testamentary and of administration, probating wills, for
settling the accounts of executors, administrators and guardians,
and for the transaction of all business appertaining to estates;
and original jurisdiction and general control over executors, ad-
ministrators, guardians and minors, under such regulations as
may be prescribed by law. The district court shall have appellate
jurisdiction and general supervisory control over the county
commissioners court, with such exceptions and under such regu-
lations as may be prescribed by law; and shall have general
original jurisdiction over all causes of action whatever for which
a remedy or jurisdiction is not provided by law. or this Con-
stitution, and such other jurisdiction, original and appellate,
as may be provided by law.

Sec. 9. There shall be a clerk for the district court of each
county, who shall be elected by the qualified voters for the State
and county officers; and who shall hold his office for two years,
subject to removal by information, or by indictment of a grand
jury, and conviction by a petit jury. In case of vacancy the
judge of a district court shall have the power to appoint a clerk,
who shall hold until the office can be filled by election.

Sec. 10. In the trial of all causes in the district courts, the
plaintiff or defendant shall, upon application made in open court,
have the right of trial by jury ; but no jury shall be impaneled
in any civil case unless demanded by a party to the case, and a
jury fee be paid by the party demanding a jury, for such sum
and with such exceptions as may be prescribed by the Legislature.

Appendix 373

Sec. 11. No judge shall sit in any case wherein he may be
interested or where either of the parties may be connected with
him by affinity or consanguinity, within such degree as may be
prescribed by law, or where he shall have been counsel in the
case. "When the Supreme Court, or the appellate court, or any
two of the members of either shall be thus disqualified to hear
and determine any ease or eases in said court, the same shall be
certified to the Governor of the State, who shall immediately
commission the requisite number of persons learned in the law,
for the trial and determination of said cause or causes. When a
judge of the district court is disqualified by any of the causes
above stated, the parties may, by consent, appoint a proper per-
son to try said case ; or, upon their failing to do so, a compe-
tent person may be appointed to try the same in the county
where it is pending, in such manner as may be prescribed by law.
And the district judges may exchange districts, or hold courts
for each other, when they may deem it expedient, and shall do
so when directed by law. The disqualification of judges of infe-
rior tribunals shall be remedied, and vacancies in their offices
shall be filled, as prescribed by law.

Sec. 12. All judges of the Supreme Court, Court of Appeals
and district court shall, by virtue of their office, be conservators
of the peace throughout the State. The style of all writs and
process shall be, "The State of Texas." All prosecutions shall
be carried on in the name and by the authority of "The State
of Texas," and conclude "against the peace and dignity of the
State." [Const. 1876.]

[Sees. 11 and 12, Art. 5, declared adopted September 22, 1891.]

Sec. 11. No judge shall sit in any case wherein he may be
interested, or when either of the parties may be connected with
him either by affinity or consanguinity, within such a degree as
may be prescribed by law, or when he shall have been counsel
in the case. "When the Supreme Court, the Court of Criminal
Appeals, the Court of Civil Appeals, or any member of either,
shall be thus disqualified to hear and determine any case or cases
in said court, the same shall be certified to the Governor of the
State, who shall immediately commission the requisite number
of persons learned in the law, for the trial and determination of
such cause or causes. When a judge of the district court is dis-
qualified by any of the causes above stated, the parties may, by
consent, appoint a proper person to try said case ; or, upon their

374 Appendix

failing to do so, a competent person may be appointed to try the
same in the county where it is pending, in such manner as may
be prescribed by law. And the district judges may exchange
districts or hold courts for each other when they may deem it
expedient, and shall do so when required by law. This disqual-
ification of judges of inferior tribunals shall be remedied and
vacancies in their offices filled, as may be prescribed by law.

Sec. 12. All judges of courts of this State shall, by virtue
of their office, be conservators of the peace throughout the State.
The style of all writs and process shall be "The State of Texas."
All prosecutions shall be carried on in the name and by the au-
thority of the State of Texas, and shall concluded "against the
peace and dignity of the State."

Sec. 13. Grand and petit juries in the district courts shall be
composed of twelve men ; but nine members of a grand jury shall
be a quorum to transact business and present bills. In trials of
civil cases and in trials of criminal cases below the grade of felony
in the district courts, nine members of the jury concurring may
render a verdict, but when the verdict shall be rendered by
less than the whole number, it shall be signed by every mem-
ber of the jury concurring in it. "When, pending the trial of
any case, one or more jurors, not exceeding three, may die, or be
disabled from sitting, the remainder of the jury shall have the
power to render the verdict ; provided, that the Legislature may
change or modify the rule authorizing less than the whole number
of the jury to render a verdict.

Sec. 14. The judicial districts in this State and the time of
holding the courts therein are fixed by ordinance forming part of
this Constitution until otherwise provided by law.

Sec. 15. There shall be established in each county in this
State a county court, which shall be a court of record ; and there
shall be elected in each county by the qualified voters a county
judge, who shall be well informed in the law of the State, shall
be a conservator of the peace, and shall hold his office for two
years and until his successors shall be elected and qualified. He
shall receive as a compensation for his services such fees and
perquisites as may be prescribed by law.

Sec. 16. The county court shall have original jurisdiction of
all misdemeanors, of which exclusive original jurisdiction is not

Appendix 375

given to the justices' courts, as the same are now or may be
hereafter prescribed by law, and when the fine to be imposed
shall exceed two hundred dollars ; and they shall have exclusive
original jurisdiction in all civil cases when the matter in contro-
versy shall exceed in value two hundred dollars and not exceed
five hundred dollars, exclusive of interest; and concurrent juris-
diction with the district courts, when the matter in controversy
shall exceed five hundred and not exceed one thousand dollars
exclusive interest, but shall not have jurisdiction of suits for
the recovery of land. They shall have appellate jurisdiction in
cases, civil and criminal, of which justices' courts have original
jurisdiction, but of such civil cases only when the judgment of
the court appealed from shall exceed twenty dollars, exclusive of
costs under such regulations as may be prescribed by law. In all
appeals from justices ' courts, there shall be a trial de novo in the
county court, and when the judgment rendered or fine imposed
by the county court shall not exceed one hundred dollars such
trial shall be final ; but if the judgment rendered or fine imposed
shall exceed one hundred dollars, as well as in all cases, civil
and criminal, of which the county court has exclusive or con-
current original jurisdiction an appeal shall lie to the Court of
Appeals, under such regulations as may be prescribed by law.
The county courts shall have the general jurisdiction of a probate
court. They shall probate wills, appoint guardians of minors,
idiots, lunatics, persons non compos mentis, and common drunk-
ards, grant letters testementary and of administration, settle
accounts of executors, administrators and guardians, trans-
act all business appertaining to the estates of deceased per-
sons, minors, idiots, lunatics, persons non compos mentis, and
common drunkards, including the settlement, partition and dis-
tribution of estates of deceased persons, and to apprentice minors
as provided by law. And the county courts or judges thereof
shall have power to issue writs of mandamus, injunction and all
other writs necessary to the enforcement of the jurisdiction of
said courts; and to issue writs of habeas corpus in cases where
the offense charged is within the jurisdiction of the county court,
or any other court or tribunal inferior to said court. The county
court shall not have criminal jurisdiction in any county where
there is a criminal district court, unless expressly conferred by
law ; and in such counties appeals from justices' courts and other
inferior courts and tribunals, in criminal cases, shall be to the
criminal district courts, under such regulations as may be pre-
scribed by law, and in all such cases an appeal shall lie from
such district courts to the Court of Appeals. Any case pending
in the county court, which the county judge may be disqualified
to try, shall be transferred to the district court of the same

376 Appendix

county for trial; and where there exists any cause disqualifying
the county judge for the trial of a cause of which the county
court has jurisdiction, the district court of such county shall have
original jurisdiction of such cause. [Const. 1876.]

[Sec. 16, Art. 5, declared adopted September 22, 1891.]
Sec. 16. The county court shall have original jurisdiction
of all misdemeanors of which exclusive original jurisdiction is
not given to the justices' courts as the same is now or may here-
after be prescribed by law, and when the fine to be imposed shall
exceed $200; and they shall have exclusive jurisdiction in all
civil cases when the matter in controversy shall exceed in value
$200 and not exceed $500, exclusive of interest ; and concurrent
jurisdiction with the district court when the matter in contro-
versy shall exceed $500 and not exceed $1000, exclusive of inter-
est, but shall not have jurisdiction of suits for the recovery of
land. They shall have appellate jurisdiction in cases, civil and
criminal, of which justices' courts have original jurisdiction,
but of such civil cases only when the judgment of the court ap-
pealed from shall exceed $20, exclusive of costs, under such reg-
ulations as may be prescribed by law. In all appeals from jus-
tices' courts there shall be a trial de novo in the county court,
and appeals may be prosecuted from the final judgment ren-
dered in such cases by the county court, as well as all cases, civil
and criminal, of which the county court has exclusive or concur-
rent or original jurisdiction [of civil appeals] in civil cases to
the Court of Civil Appeals, and in such criminal cases to the
Court of Criminal Appeals, with such exceptions and under such
regulations as may be prescribed by law. The county court
shall have the general jurisdiction of a probate court ; they shall
probate wills, appoint guardians of minors, idiots, lunatics, per-
sons non compos mentis, and common drunkards; grant letters
testementary and of administration; settle accounts of execu-
tors; transact all business appertaining to estates of deceased
persons, minors, idiots, lunatics, persons non compos mentis, and
common drunkards, including the settlement, partition and dis-
tribution of estates of deceased persons; and to apprentice mi-
nors as provided by law ; and the county court or judge thereof

Appendix 377

shall have power to issue writs of injunction, mcmdamus, and all
writs necessary to the enforcement of the jurisdiction of said
court, and to issue writs of habeas corpus in cases where the of-
fense charged is within the jurisdiction of the county court, or
any other court or tribunal inferior to said court. The county
court shall not have criminal jurisdiction in any county where
there is a criminal district court unless expressly conferred by
law ; and in such counties appeals from justices' courts and other
inferior courts and tribunals in criminal cases shall be to the
criminal district court, under such regulations as may be pre-
scribed by law, and in all such cases an appeal shall lie from
such district court to the Court of Criminal Appeals. When
the judge of the county court is disqualified in any case pending
in the county court the parties interested may by consent appoint
a proper person to try said case, or upon their failing to do so
a competent person may be appointed to try the same in the
county where it is pending in such manner as may be prescribed
by law.

Sec. 17. The county court shall hold a term for civil business
at least once in every two months, and shall dispose of probate
business, either in term time or vacation, as may be provided
by law, and said court shall hold a term for criminal business
once in every month, as may be provided by law. Prosecutions
may be commenced in said court by information filed by the coun-
ty attorney, or by affidavit, as may be provided by law. Grand
juries impaneled in the district courts shall inquire into misde-
meanors, and all indictments therefor returned into the district
courts shall forthwith be certified to by the county courts, or
other inferior courts having jurisdiction to try them, for trial;
and if such indictment be quashed in the county, or other infe-
rior court, the person charged shall not be discharged if there
is probable cause of guilt, but may be held by such court or mag-
istrate to answer an information or affidavit. A jury in the
county court shall consist of six men; but no jury shall be im-
paneled to try a civil case, unless demanded by one of the par-
ties, who shall pay such jury fee therefor in advance, as may be
prescribed by law, unless he makes affidavit that he is unable to
pay the same.

Sec. 18. Bach organized county in the State, now or hereafter

378 Appendix

existing, shall be divided from time to time, for the convenience
of the people into precincts, not less than four and not more
than eight. The present county court shall make the first di-
vision. Subsequent divisions shall be made by the commissioners'
court provided for by this Constitution. In each such precinct
there shall be elected, at each biennial election, one justice of the
peace and one constable, each of whom shall hold his office for
two years, and until his successor shall be elected and qualified ;
provided, that in any precinct in which there may be a city of
eight thousand or more inhabitants, there shall be elected two
justices of the peace. Each county shall in like manner be divided
into four commissioners precincts in each of which there shall be
elected by the qualified voters thereof one county commissioner,
who shall hold his office for two years, and until his successor
shall be elected and qualified. The county commissioners so
chosen, with the county judge as presiding officer, shall compose
the county commissioners' court, which shall exercise such power
and jurisdiction over all county business as is conferred by this
Constitution and the laws of the State, or as may be hereafter
prescribed.

Sec. 19. Justices of the peace shall have jurisdiction in crim-
inal matters of all cases where the penalty or fine to be imposed
by law may not be more than two hundred dollars, and in civil
matters of all cases where the amount in controversy is two
hundred dollars or less, exclusive of interest, of which exclusive
original jurisdiction is not given to the district or county courts ;
and such other jurisdiction, criminal and civil, as may be pro-
vided by law, under such regulations as may be prescribed by
law; and appeals to the county courts shall be allowed in all
cases decided in justices' courts where the judgment is for more
than twenty dollars, exclusive of costs, and in all criminal cases,
under such regulations as may be prescribed by law. And the
justices of the peace shall be ex officio notaries public ; and they
shall hold their courts at such times and places as may be pro-
vided by law.

Sec. 20. There shall be elected for each county, by the quali-
fied voters, a county clerk, who shall hold his office for two years,
who shall be clerk of the county and commissioners' courts and
recorder of the county, whose duties, perquisites and fees of of-

Appendix 379

flee shall be prescribed by the Legislature, and a vacancy in whose
office shall be filled by the commissioners' court until the next
general election for county and State officers ; providing, that in
counties having a population of less than eight thousand persons
there may be an election of a single clerk, who shall perform the
duties of district and county clerks.

Sec. 21. A county attorney, for counties in which there is
not a resident criminal district attorney, shall be elected by the
qualified voters of each county, who shall be commissioned by
the Governor and hold his office for the term of two years. In
case of vacancy the commissioners* court of the county shall have
power to appoint a county attorney until the next general elec-
tion. The county attorney shall represent the State in all cases
in the district and inferior courts in their respective counties;
but if any county shall be included in a district in which there
shall be a district attorney, the respective duties of district at-
torneys and county attorneys shall, in such counties, be regulated
by the Legislature. The Legislature may provide for the elec-
tion of district attorneys in such districts as may be deemed
necessary, and make provision for the compensation of district
attorneys and county attorneys; provided, district attorneys
shall receive an annual salary of five hundred dollars, to be paid
by the State, and such fees, commissions and perquisites as may
be provided by law. County, attorneys shall receive as compen-
sation only such fees, commissions and perquisites as may be
prescribed by law.

Sec. 22. The Legislature shall have power, by local or gen-
eral law, to increase, diminish or change the civil and criminal
jurisdiction of county courts; and in cases of any such change
of jurisdiction the Legislature shall also conform the jurisdiction
of the other courts to such change.

Sec. 23. There shall be elected by the qualified voters of each
county a sheriff, who shall hold his office for the term of two
years, whose duties and perquisites, and fees of office shall be
prescribed by the Legislature, and vacancies in whose office shall
be filled by the commissioners' court until the next general elec-
tion for county or State officers.

Sec. 24. County judges, county attorneys, clerks of the dis-
trict and county courts, justices of the peace, constables and

380 Appendix

other county officers, may be removed by the judges of the dis-
trict courts for incompetency, official misconduct, habitual drunk-
enness or other causes denned by law, upon the cause therefor
being set forth in writing, and the finding of its truth by a jury.

Sec. 25. The Supreme Court shall have power to make rules
and regulations for the government of said court, and the other
courts of the State, to regulate proceedings and expedite the dis-
patch of business therein. [Const. 1876.]

[Sec. 25, Art. 5, declared adopted September 22, 1891.]

Sec. 25. The Supreme Court shall have power to make and
establish rules of procedure, not inconsistent with the laws of
the State for the government of said court and the other courts
of this State, to expedite the dispatch of business therein.

Sec. 26. The State shall have no right of appeal in criminal
cases.

Sec. 27. The Legislature shall, at its first session, provide for
the transfer of all businses, civil and criminal, pending in district
courts, over which jurisdiction is given by this Constitution to
the county courts or other inferior courts, to such county or in-
ferior courts, and for the trial or disposition of all such causes
by such county or other inferior courts.

Sec. 28. Vacancies in the offices of judges in the Supreme
Court, of the Court of Appeals, and district court shall be filled
by the Governor until the next succeeding general election ; and
vacancies in the office of county judge and justice of the peace
shall be filled by the commissioners' court, until the next general
election for such office. [Const. 1876.]

[Sec. 28, Art. 5, declared adopted September 22, 1891.]

Sec. 28. Vacancies in the office of judges of the Supreme
Court, the Courts of Criminal Appeals, the Court of Civil Ap-
peals and district courts shall be filled by the Governor until
the next succeeding general election, and vacancies in the office
of county judge and justices of the peace shall be filled by the
commissioners' court until the next general election for such
offices.

Appendix 381

[Sec. 29, Art. 5, declared adopted September 25, 1883.]

Sec. 29. The county court shall hold at least four terms for
both civil and criminal business annually, as may be provided
by the Legislature, or by the commissioners' court of the county
under authority of law, and such other terms each year as may
be fixed by the commissioners' court; provided, the commission-
ers' court of any county having fixed the times and number of
terms of the county court shall not change the same again until
the expiration of one year. Said court shall dispose of probate
business either in. term time or vacation, under such regulations
as may be prescribed by law. Prosecutions may be commenced
in said courts in such manner as is or may be provided by law,
and a jury therein shall consist of six men. Until otherwise
provided, the terms of the county court shall be held on the first
Monday in February, May, August and November, and may re-
main in session three weeks.

ARTICLE VI.

SUFFRAGE.

Section 1. The following classes of persons shall not be al-
lowed to vote in this State, to wit :

First — Persons under twenty-one years of age.

Second — Idiots and lunatics.

Third — All paupers supported by any county.

Fourth — All persons convicted of any felony ; subject to such
exceptions as the Legislature may make.

Fifth — All soldiers, marines and seamen employed in the ser-
vice of the army of the United States.

Sec. 2. Every male person subject to none of the foregoing
disqualifications who shall have attained the age of twenty-one
years, and who shall be a citizen of the United States, and who
shall have resided in this State one year next preceding an elec-
tion, and the last six months within the district or county in
which he offers to vote, shall be deemed a qualified elector. And
every- male person of foreign birth, subject to none of the fore-
going qualifications, who, at any time before an election, shall

382 Appendix

have declared his intention to become a citizen of the United
States in accordance with the Federal naturalization laws, and
shall have resided in this State one year next preceding such
election, and the last six months in the county in which he offers
to vote, shall also be deemed a qualified elector; and all electors
shall vote in the election precinct of their residence; provided,
that electors living in an unorganized county may vote in any
election precinct in the county to which such county is attached
for judicial purposes. [Const. 1876.]

Sec. 2. Every male person subject to none of the foregoing
disqualifications, who shall have attained the age of twenty-one
years, and who shall be a citizen of the United States, and who
shall have resided in this State one year next preceding an elec-
tion, and the last six months within the district or county in
which he offers to vote, shall be deemed a qualified elector. And
every male person of foreign birth, subject to none of the fore-
going disqualifications, who, not less than six months before any
election at which he offers to vote, shall have declared his inten-
tion to become a citizen of the United States in accordance with
the Federal naturalization laws, and shall have resided in this
State one year next preceding such election, and the last six
months in the county in which he offers to vote, shall also be
deemed a qualified elector; and all electors shall vote in the
election precinct of their residence ; provided, that electors living
in an unoraganized county may vote at any election precinct
in the county to which such county is attached for judicial pur-
poses. [Declared adopted December 18, 1896.]

[Sec. 2, Art. 6, declared adopted December 26, 1902.]

Sec. 2. Every male person subject to none of the foregoing
disqualifications who shall have attained the age of twenty-one
years, and who shall be a citizen of the United States, and who
shall have resided in this State one year next preceding an
election, and the last six months within the district or county
in which he offers to vote, shall be deemed a qualified elector.
And every male person of foreign birth, subject to none of the
foregoing disqualifications, who, not less than six months before
any election at which he offers to vote, shall have declared his
intention to become a citizen of the United States in accordance
with the Federal naturalization laws, and shall have resided in
this State one year next preceding such election, and the last

Appendix 383

six months in the county in which he offers to vote, shall also
be deemd a qualifid elector; and all electors shall vote in the
election precinct of their residence ; provided, that electors living
in an unorganized county may vote in any election precinct in
the county to which such county is attached for judicial pur-

Sec. 3. All qualified electors in the State, as herein described,
who shall have resided for six months immediately preceding an
election within the limits of any city or corporate town, shall have
the right to vote for mayor and all other elective officers; but
in all elections to determine expenditure of money or assumption
of debt, only those shall be qualified to vote who pay taxes on
property in said city or incorporated town; provided, that no
poll tax for the payment of debts thus incurred shall be levied
upon the persons debarred from voting in relation thereto.

Sec. 4. In all elections by the people the votes shall be by
ballot, and the Legislature shall provide for the numbering of
tickets, and make such other regulations as may be necessary
to detect and punish fraud, and preserve the purity of the ballot
box; but no law shall ever be enacted requiring a registration of
the voters of this State. [Const. 1876.]

[Sec. 4, Art. 6, declared adopted September 22, 1891.]

Sec. 4. In all elections by the people the vote shall be by
ballot, and the Legislature shall provide for the numbering of
tickets and make such other regulations as may be necessary to
detect and punish fraud and preserve the purity of the ballot
box; and the Legislature may provide by law for the registration
of all voters in all cities containing a population of ten thousand
inhabitants or more.

Sec. 5. Voters shall, in all cases, except treason, felony or
breach of the peace, be privileged from arrest during their at-
tendance at elections, and in going to and returning therefrom.

384 Appendix

ARTICLE VII.

EDUCATION — THE PUBLIC FREE SCHOOLS.

Section 1. A general diffusion of knowledge being essential
to the preservation of the liberties and rights of the people, it
shall be the duty of the Legislature of the State to establish
and make suitable provision for the support and maintenance
of an efficient system of public free schools.

Sec. 2. All funds, lands and other property heretofore set
apart and appropriated for the support of public schools, all the
alternate sections of land reserved by the State out of grants
heretofore made or that may hereafter be made to railroads or
other corporations, of any nature whatsoever, one-half of the
public domain of the State, and all sums of money that may
come to the State from the sale of any portion of the same,
shall constitute a perpetual school fund.

Sec- 3. There shall be set apart annually not more than one-
fourth of the general revenue of the State, and a poll tax of
one dollar on all male inhabitants in this State between the ages
of twenty-one and sixty years, for the benefit of the public free
schools. [Const. 1876.]

Sec. 3. One-fourth of the revenue derived from the State
occupation taxes, and a poll tax of one dollar on every male
inhabitants of this State between the ages of twenty-one and
sixty years, shall be set apart annually for the benefit of the
public free schools, and, in addition thereto, there shall be levied
and collected an annual ad valorem State tax of such an amount
not to exceed twenty cents on the one hundred dollars valuation,
as, with the available school fund arising from all other sources,
will be sufficient to maintain and support the public free schools
of this State for a period of not less than six months in each
year; and the Legislature may also provide for the formation
of school districts within all or any of the counties of this State,
by general or special law, without the local notice required in
other cases of special legislation, and may authorize an additional
annual ad valorem tax to be levied and collected within such
school districts for the further maintenance of public free schools
and the erection of school buildings therein ; provided, that two-
thirds of the qualified property taxpaying voters of the district,
voting at an election to be held for that purpose, shall vote such
tax, not to exceed in any one year twenty cents on the one hun-

Appendix 385

dred dollars valuation of the property subject to taxation in such
district, but the limitation upon the payment of district tax
herein authorized shall not apply to incorporated cities or towns
constituting separate and independent school districts. [Amend-
ment 1883.]

Sec. 3. One-fourth of the revenue derived from the State
occupation taxes and a poll tax of one dollar on every male
inhabitant of this State between the ages of twenty-one and sixty
years shall be set apart annually for the benefit of the public
free schools, and in addition thereto there shall be levied and
collected an annual ad valorem State tax of such amount not to
exceed twenty cents on the one hundred dollars valuation, as
with the available school fund arising from all other sources, will
be sufficient to maintain and support the public free schools of
this State for a period of not less than six months in each year,
and the Legislature may also provide for the formation of school
districts within all or any of the counties of this State by general
or special law, without the local notice required in other cases of
special legislation, and may authorize an additional ad valorem.
tax to be levied and collected within such school districts for the
further maintenance of public free schools, and the erection and
equipment of school buildings therein; provided, that a majority
of the qualified property taxpaying voters of the district, voting
at an election to be held for that purpose, shall vote such tax,
not to exceed in any one year fifty cents on the one hundred
dollars valuation of the property subject to taxation in such dis-
trict, but the limitation upon the amount of district tax herein
authorized shall not apply to incorporated cities or towns con-
stituting separate and independent school districts. [Amend-
ment 1908.]

[Sec. 3, Art. 7, declared adopted September 24, 1909.]

Sec- 3. One-fourth of the revenue derived from the State
occupation taxes and a poll tax of $1 on every male inhabitant
of this State between the ages of 21 and 60 years shall be set
apart annually for the benefit of the public free schools, and in
addition thereto there shall be levied and collected an annual
ad valorem State tax of such an amount, not to exceed 20 cents
on the $100 valuation, as with the available school fund arising
from all other sources, will be sufficient to maintain and support
the public free schools of this State for a period of not less than
six months in each year, and the Legislature may also provide
for the formation of school districts by general or special law,

386 Appendix

without the local notice required in other cases of special legisla-
tion, and all such school districts, whether created by general
or special law may embrace parts of two or more counties. And
the Legislature shall be authorized to pass laws for the assessment
and collection of taxes in all said districts and for the management
and control of the public school or schools of such districts,
whether such districts are composed of territory wholly within
a county or in parts of two or more counties. And the Legisla-
ture may authorize an additional ad valorem tax to be levied and
collected within all school districts heretofore formed or here-
after formed for the further maintenance of public free schools,
and the erection and equipment of school buildings therein, pro-
vided that a majority of the qualified property tax-paying voters
of the district, voting at an election to be held for that purpose,
shall vote such tax, not to exceed in any one year 50 cents on the
$100 valuation of the property subject to taxation in such district,
but the limitation upon the amount of school district tax herein
authorized shall not apply to incorporated cities or towns con-
stituting separate and independent school districts.

Sec. 3a. Every school district heretofore formed, whether
formed under the general law or by spcial act, and whether the
territory embraced within its boundaries lies wholly within a
single county or partly in two or more counties, is hereby declared
to be, and from its formation to have been, a valid and lawful
district.

All bonds heretofore issued by any such districts which have
been approved by the Attorney-General and registered by the
Comptroller are hereby declared to be, and at the time of their
issuance to have been, issued in conformity with the Constitution
and laws of this State, and any and all such bonds are hereby in
all things validated and declared to be valid and binding obliga-
tions upon the district or districts issuing the same.

Each such district is hereby authorized to, and shall, annually
levy and collect an ad valorem tax sufficient to pay the interest
on all such bonds, and to provide a sinking fund sufficient to
redeem the same at maturity, not to exceed such a rate as may
be provided by law under other provisions of this Constitution.
And all trustees heretofore elected in districts made up of more
than one county are hereby declared to have been duly elected,

Appendix 387

and shall be and are hereby named as trustees of their respective
districts, with power to levy the taxes herein authorized until
their successor shall be duly elected and qualified as is or may
be provided by law.

Sec. 4. The lands herein set apart to the public free school
fund shall be sold under such regulations, at such times and on
such terms as may be prescribed by law ; and the Legislature shall
not have power to grant any relief to purchasers thereof. The
Comptroller shall invest the proceeds of such sales, and of those
heretofore made, as may be directed by the Board of Education
herein provided for, in the bonds of this State, if the same can
be obtained, otherwise in United States bonds; and the United
States bonds now belonging to said fund shall likewise be in-
vested in State bonds, if the same can be obtained on terms ad-
vantageous to the school fund. [Const. 1876.]

[Sec. 4, Art. 7, declared adopted September 25, 1883.]

Sec. 4. The lands herein set apart to the public free school
fund shall be sold under such regulations, at such times, and on
such terms as may be prescribed by law ; and the Legislature shall
not have power to grant any relief to purchasers thereof. The
Comptroller shall invest the proceeds of such sales, and of those
heretofore made, as may be directed by the Board of Education
herein provided for, in the bonds of the United States, the State
of Texas, or counties of such State, or in such other securities
and under such restrictions as may be prescribed by law; and
the State shall be responsible for all investments.

Sec. 5. The principal of all bonds and other funds, and the
principal arising from the sale of lands hereinbefore set apart to
said school fund, shall be the permanent school fund ; and all the
interest derivable therefrom and the taxes herein authorized and
levied shall be the available school fund, which shall be applied
annually to the support of the public free schools. And no law
shall ever be enacted appropriating any part of the permanent
or available school fund to any other purpose whatever; nor
shall the same, or any part thereof, ever be appropriated to or
used for the support of any sectarian school ; and the available
school fund herein provided shall be distributed to the several
counties according to their scholastic population and applied in
manner as may be provided by law. [Const. 1876.]

388 Appendix

[See. 5, Art. 7, declared adopted September 22, 1891.]

Sec. 5. The principal of all bonds and other funds, and the
principal arising from the sale of the lands hereinbefore set
apart to said school fund, shall be the permanent school fund;
and all the interest derivable therefrom and the taxes herein
authorized and levied shall be the available school fund, to which
the Legislature may add not exceeding one per cent annually
of the total value of the permanent school fund; such value
to be ascertained by the Board of Education until otherwise
provided by law; and the available school fund shall be applied
annually to the support of the public free schools. And no
law shall ever be enacted appropriating any part of the perma-
nent or available school fund to any other purpose whatever;
nor shall the same or any part thereof ever be appropriated to
or used for the support of any secetarian school ; and the avail-
able school fund herein provided shall be distributed to the
several counties according to their scholastic population and ap-
plied in such manner as may be provided by law.

Sec. 6. All lands heretofore or hereafter granted to the
several counties of this State for education, or schools, are of
right the property of said counties respectively to which they
were granted, and title thereto is vested in said counties, and no
adverse possession or limitation shall ever be available against
the title of any county. Bach county may sell or dispose of its
lands in whole or in part, in manner to be provided by the com-
missioners court of the county. Actual settlers residing on said
lands shall be protected in the prior right of purchasing the same
to the extent of their settlement, not to exceed one hundred and
sixty acres, at the price fixed by said court, which price shall not
include the value of existing improvements made thereon by
such settlers. Said lands and the proceeds thereof, when sold,
shall be held by said counties alone as a trust for the benefit of
public schools therein ; said proceeds to be invested in bonds of
the State of Texas, or of the United States, and only the interest
thereon to be used and expended annually. [Const. 1876.]

[Sec. 6, Art. 7, declared adopted September 25, 1883.]

Sec. 6. All lands heretofore or hereafter granted to the sev-
eral counties of this State for educational purposes are of right

Appendix 389

the property of said counties respectively to which they were
granted, and title thereto is vested in said counties, and no
adverse possession or limitation shall ever be available against the
title of any county. Each county may sell or dispose of its
lands in whole or in part, in manner to be provided by the com-
missioners court of the county. Actual settlers residing on said
land shall be protected in the prior right of purchasing the same
to the extent of their settlement, not to exceed one hundred and
sixty acres, at the price fixed by said court, which price shall not
include the value of existing improvements made thereon by such
settlers. Said lands, and the proceeds thereof, when sold, shall
be held by said counties alone as a trust for the benefit of public
schools therein; said proceeds to be invested in bonds of the
United States, the State of Texas, or counties in said State, or
in such other securities, and under such restrictions as may be
prescribed by law; and the counties shall be responsible for all
investments; the interest thereon and other revenue, except the
principal, shall be available fund.

Sec. 7. Separate schools shall be provided for the white and
colored children, and impartial provision shall be made for both.

Sec. 8. The Governor, Comptroller and Secretary of State
shall constitute a board of education, who shall distribute said
funds to the several counties and perform such other duties con-
cerning public schools as may be prescribed by law.

ASYLUMS.

Sec. 9. All lands heretofore granted for the benefit of the
lunatic, blind, deaf and dumb, and orphan asylums, together
with such donations as may have been or may hereafter be made
to either of them, respectively, as indicated in the several grants,
are hereby set apart to provide a permanent fund for the sup-
port, maintenance and improvement of said asylums. And the
Legislature may provide for the sale of the lands and the in-
vestment of the proceeds in the manner as provided for the sale
and investment of school lands in section four of this article.

390 Appendix

UNIVERSITY.

Sec. 10. The Legislature shall, as soon as practicable, estab-
lish, organize and provide for the maintenance, support and di-
rection of a university of the first class, to be located by a vote
of the people of this State and styled ' ' The University of Texas, ' '
for the promotion of literature and the arts and sciences, includ-
ing an agricultural and mechanical department.

Sec. 11. In order to enable the Legislature to perform the
duties set forth in the foregoing section, it is hereby declared that
all lands and other property heretofore set apart and appro-
priated for the establishment and maintenance of "The Univer-
sity of Texas," together with all the proceeds of sales of the
same, heretofore made or hereafter to be made, and all grants,
donations and appropriations that may hereafter be made by the
State of Texas, or from any other source, shall constitute and
become a permanent university fund. And the same as realized
and received into the treasury of the State (together with such
sum belonging to the fund as may now be in the treasury), shall
be invested in bonds of the State of Texas, if the same can be
obtained; if not, then in United States bonds; and the interest
accruing thereon shall be subject to appropriation by the Legis-
lature to accomplish the purpose declared in the foregoing sec-
tion ; provided, that the one-tenth of the alternate sections of the
lands granted to railroads, reserved by the State, which were set
apart and appropriated to the establishment of "The University
of Texas," by an act of the Legislature of February 11, 1858,
entitled "An Act to establish 'The University of Texas'," shall
not be included in or constitute a part of the permanent uni-
versity fund.

Sec. 12. The land herein set apart to the university fund
shall be sold under such regulations, at such times and on such
terms as may be provided by law; and the Legislature shall
provide for the prompt collection, at maturity, of all debts due
on account of university lands heretofore sold, or that may here-
after be sold, and shall in neither event have the power to grant
relief to the purchasers.

Sec. 13. The Agricultural and Mechanical College of Texas,
established by an act of the Legislature, passed April 17, 1871,

Appendix 391

located in the county of Brazos, is hereby made and constituted
a branch of the University of Texas, for instruction in agricul-
ture, the mechanic arts and the natural sciences connected there-
with. And the Legislature shall at its next session make an ap-
propriation not to exceed forty thousand dollars, for the con-
struction and completion of the buildings and improvements, and
for providing the furniture necessary to put said college in
immediate and successful operation.

Sec. 14. The Legislature shall, also, when deemed prac-
ticable, establish and provide for the maintenance of a college
or branch university for the instruction of the colored youths of
the State, to be located by a vote of the people ; provided, that no
tax shall be levied and no money appropriated out of the general
revenue, either for this purpose or for the establishment and
erection of the buildings of the University of Texas.

Sec. 15. In addition to the lands heretofore granted to the
University of Texas, there is hereby set apart and appropriated,
for the endowment, maintenance and support of said university
and its branches, one million acres of the unappropriated public
domain of the State, to be designated and surveyed as may be
provided by law; and said lands shall be sold under the same
regulations and the proceeds invested in the same manner as
provided for the sale and investment of the permanent university
fund; and the Legislature shall not have the power to grant
any relief to the purchasers of said lands.

ARTICLE VIII.

TAXATION AND REVENUE.

Section 1. Taxation shall be equal and uniform. All prop-
erty in this State, whether owned by natural persons or corpora-
tions, other than municipal, shall be taxed in proportion to its
value, which shall be ascertained as may be provided by law.
The Legislature may impose a poll tax. It may also impose
occupation taxes, both upon natural persons and upon corpora-
tions other than municipal, doing any business in this State.
It may also tax incomes of both natural persons and corpora-
tions, other than municipal, except that persons engaged in

392 Appendix

mechanical and agricultural pursuits shall never be required to
pay an occupation tax; provided, that two hundred and fifty
dollars worth of household and kitchen furniture belonging to
each family in this State shall be exempt from taxation, and
provided further, that the occupation tax levied by any county,
city or town, for any year, on persons or corporations pursuing
any profession or business, shall not exceed one-half of the tax
levied by the State for the same period on such profession or
business.

Sec. 2. All occupation taxes shall be equal and uniform upon
the same class of subjects within the limits of the authority levy-
ing the tax; but the Legislature may, by general laws, exempt
from taxation public property used for public purposes ; actual
places of religious worship ; places of burial not held for private
or corporate profit ; all buildings used exclusively and owned by
persons or associations of persons for school purposes (and the
necessary furniture of all schools) and institutions of purely
public charity; and all laws exempting property from taxation
other than the property above mentioned, shall be void. [Const.
1876.]

[Sec. 2, Art. 8, adopted November 6, 1906,]

Seo. 2. All occupation taxes shall be equal and uniform upon
the same class of subjects within the limits of the authority levy-
ing the tax, but the Legislature may, by general laws, exempt
from taxation public property used for public purposes ; actual
places of religious worship ; places of burial not held for private
or corporate profit; all buildings used exclusively and owned
by persons or associations of persons for school purposes and the
necessary furniture of all schools, also the endowment funds
of such institutions of learning and religion not used with a view
to profit and when the same are invested in bonds or mortgages,
or in land or other property which has been and shall hereafter
be bought in by such institutions under foreclosure sales made
to satisfy or protect such bonds or mortgages ; that such exemp-
tion of such land and property shall continue only for two years
after the purchase of the same at such sale by such institutions
and no longer, and institutions of purely public charity ; and all
laws exempting property from taxation other than the property
above mentioned shall be null and void.

Appendix 393

Sec. 3. Taxes shall be levied and collected by general laws
and for public purposes only.

Sec. 4. The power to tax corporations and corporate property
shall not be surrendered or suspended by act of the Legislature,
by any contract or grant to which the State shall be a party.

Sec. 5. All property of railroad companies, of whatever de-
scription, lying or being within the limits of any city or incor-
porated town within this State, shall bear its proportionate share
of muncipal taxation, and if any such property shall not have
been heretofore rendered, the authorities of the city or town
within which it lies shall have power to require its rendition, and
collect the usual municipal tax thereon, as on other property
lying within said municipality.

Sec. 6. No money shall be drawn from the treasury but in
pursuance of specific appropriations made by law ; nor shall any
appropriations of money be made for a longer term than two
years, except by the first Legislature to assemble under this Con-
stitution, which may make the necessary appropriations to carry
on the government until the assemblage of the Sixteenth Legisla-
ture.

Sec. 7. The Legislature shall not have power to borrow, or
in any manner divert from its purpose, any special fund that may,
or ought to, come into the treasury ; and shall make it penal for
any person or persons to borrow, withhold, or in any manner to
divert from its purpose, any special fund or any part thereof.

Sec. 8. All property of railroad companies shall be assessed,.
and the taxes collected in the several counties in which said
property is situated, including so much of the roadbed and fix-
tures as shall be in each county. The rolling stock may be as-
sessed in gross in the county where the principal office of the
company is located, and the county tax paid upon it shall be
apportioned by the Comptroller, in proportion to the distance
such road may run through any such county, among the several
counties through which the road passes, as part of their tax
assets.

Sec. 9. The State tax on property, exclusive of the tax neces-
sary to pay the public debt, shall never exceed fifty cents on the
one hundred dollars valuatidn; and no county, city or town shall
levy more than one-half of said State tax, except for the* pay-

394 Appendix

ment of debts already incurred, and for the erection of public
buildings not to exceed fifty cents on the one hundred dollars
in any one year, and except as in this Constitution is otherwise
provided. [Const. 1876.]

Sec. 9. The State tax on property, exclusive of the tax
necessary to pay the public debt, and the taxes provided for the
benefit of public free schools, shall never exceed thirty-five cents
on the one hundred dollars valuation; and no county, city or
town shall levy more than twenty-five cents for city or county
purposes, and not to exceed fifteen cents for roads and bridges,
on the one hundred dollars valuation, except for the payment of
debts incurred prior to the adoption of this amendment, and for
the erection of public buildings, street, sewer and other perma-
nent improvements, not to exceed twenty-five cents on the one
hundred dollars valuation in any one year, and except as is in
this Constitution otherwise provided. [Amendment 1883.]

Sec. 9. The State tax on property, exclusive of the tax neces-
sary to pay the public debt and the taxes provided for the benfit
of public free schools shall never exceed thirty-five cents on the
one hundred dollars valuation ; and no county, city or town shall
levy more than twenty-five cents for city or county purposes,
and not exceeding fifteen cents for roads and bridges on the
one hundred dollars valuation, except for the payment of debts
incurrd prior to the adoption of the amendment, September 25,
A. D. 1883; and for the erection of public buildings, streets,
sewer, water works, and other permanent improvements, not to
exceed twenty-five cents on the one hundred dollars valuation
in any one year, and except as is in this Constitution otherwise
provided: and the Legislature may also authorize an additional
annual ad valorem tax to be levied and collected for the further
maintenance of the public roads ; provided, that a majority of the
qualified property taxpaying voters of the county, voting at an
election to be held for that purpose, shall vote such tax, not to
exceed fifteen cents on the one hundred dollars valuation of the
property subject to taxation in such county. And the Legislature!
may pass local laws for the maintenance of public roads and
highways without the local notice required for special or local
laws. [Amendment 1890.]

[Sec. 9, Art. 8, adopted November 6, 1906.]

\
Sec. 9. The State tax on property, exclusive of the tax neces-
sary to pay the public debt, and of the taxes provided for the
benefit of the public free schools, shall never exceed thirty-five
cents on the one hundred dollars valuation ; and no county, city

Appendix 395

or town shall levy more than twenty-five cents for city or county
purposes, and not exceeding fifteen cents for road and bridges,
and not exceeding fifteen cents to pay jurors, on the one hundred
dollars valuation, except for the payment of debts incurred prior
to the adoption of the amendment September 25, 1883, and for
the erection of public buildings, streets, sewers, water works and
other permanent improvements, not to exceed twenty-five cents
on the one hundred dollars valuation, in any one year, and except
as is in this Constitution otherwise provided; and the Legislature
may also authorize an additional annual ad valorem tax to be
levied and collected for the further maintenance of the public
roads; provided, that a majority of the qualified property tax-
paying voters of the county voting at an election to be held for
that purpose shall vote such tax, not to exceed fifteen cents on
the one hundred dollars valuation of the property subject to
taxation in such county. And the Legislature may pass local
laws for the maintenance of the public roads and highways,
without the local notice required for special or local laws.

Sec. 10. The Legislature shall have no power to release the
inhabitants of or property in any county, city or town, from the
payment of taxes levied for State or county purposes, unless in
case of great public calamity in any such county, city or town,
when such release may be made by a vote of two-thirds of each
house of the Legislature.

Sec. 11. All property, whether owned by persons or corpora-
tions, shall be assessed for taxation and the taxes paid in the
county where situated, but the Legislature may by a two thirds
vote authorize the payment of taxes of non-residents of counties
to be made at the office of tfhe Comptroller of Public Accounts.
And all lands and other property not rendered for taxation by
the owner thereof shall be assessed as its fair value by the proper
officer.

Sec. 12. All property subject to taxation in, and owned by
residents of unorganized counties, shall be assessed and the taxes
thereon paid in the counties to which such unorganized counties
shall be attached for judicial purposes ; and lands lying in and
owned by non-residents of unorganized counties, and lands lying
in the territory not laid off into counties shall be assessed and the

396 Appendix

taxes thereon collected at the offijce of the Comptroller of the
State.

Sec. 13. Provision shall be made by the first Legislature for
the speedy sale of a sufficient portion of all lands and other
property for the taxes due thereon, and every year thereafter
for the sale of all lands and other property upon which the taxes
have not been paid, and the deed of conveyance to the pur-
chaser for all lands and other property thus sold shall be held
to vest a good and perfect title in the purchaser thereof, subject
to be impeached only for actual fraud ; provided, that the former
owner shall within two years from date of purchaser's deed,
have the right to redeem the land upon the payment of double
the amount of money paid for the land.

Sec. 14. There shall be elected by the qualified electors of
each county, at the same time and under the same law regulating
the election of State and county officers, an assessor of taxes,
who shall hold his office for two years and until his successor
is elected and qualified.

Sec. 15. The annual assessment made upon landed property
shall be a special lien thereon, and all property, both real and
personal, belonging to any delinquent taxpayer shall be liable
to seizure and sale for the payment of all the taxes and penalties
due by such delinquent; and such property may be sold for the
payment of the taxes and penalties due by such delinquent,
under such regulations as the Legislature may provide.

Sec. 16. The sheriff of each county, in addition to his other
duties, shall be the collector of taxes therefor. But in counties
having ten thousand inhabitants, to be determined by the last
preceding census of the United States, a collector of taxes shall
be elected, to hold office for two years and until his successor
shall be elected and qualified.

Sec. 17. The specification of the objects and subjects of taxa-
tion shall not deprive the Legislature of the power to require
other subjects or objects to be taxed, in such manner as may be
consistent with the principles of taxation fixed in this Constitu-
tion.

Sec. 18. The Legislature shall provide for equalizing, as near
as may be, the valuation of all property subject to or rendered

Appendix 397

for taxation (the county commissioners court to constitute a
board of equalization) ; and may also provide for the classifica-
tion of all lands with reference to their value in the several
counties.

[Sec. 19, Art. 8, declared adopted October 14, 1879.]

Sec. 19. Farm products in the hands of the producer and
family supplies for home and farm use are exempt from all tax-
ation until otherwise directed by a two-thirds vote of all the
members elect of both houses of the Legislature.

ARTICLE IX.

COUNTIES.

Section 1. The Legislature shall have power to create
counties for the conveniences of the people, subject to the follow-
ing provisions :

First. In the territory of the State exterior to all counties
now existing, no new counties shall be created with a less area
than nine hundred square miles, in a square form, unless pre-
vented by pre-existing, boundary lines. Should the State lines
render this impracticable in border counties, the area may be
less. The territory referred to may, at any time, in whole or in
part, be divided into counties in advance of population, and
attached for judicial and land surveying purposes, to the most
convenient organized county or counties.

Second. Within the territory of any county or counties now
existing, no new county shall be created with a less area than seven
hundred square miles, nor shall any such county now existing
be reduced to a less area than seven hundred square miles. No
new counties shall be created so as to approach nearer than twelve
miles of the county seat of any county from which it may, in
whole or in part, be taken. Counties of a less area than nine
hundred, but of seven hundred or more square miles, within
counties now existing, may be created by a two-thirds vote of
each house of the Legislature, taken by yeas and nays, and entered

398 Appendix

on the journals. Any county now existing may be reduced
to an area of not less than seven hundred square miles by a like
two-thirds vote. "When any part of a county is stricken off and
attached to or created in,to another county, the part stricken
off shall be holden for and obliged to pay its proportion of all
the liabilities then existing of the county from which it was
taken, in such manner as may be prescribed by law.

Third. No part of any existing county shall be detached from
it and attached to another existing county until the proposition
for such change shall have been submitted, in such manner as
may be provided by law, to a vote of the electors of both counties
and shall have received a majority of those voting on the ques-
tion in each.

COUNTY SEATS.

Sec. 2. The Legislature shall pass laws regulating the man-
ner of removing county seats, but no county seat situated within
five miles of the geographical center of the county shall be re-
moved except by a vote of two-thirds of all electors voting on the
subject. A majority of such electors, however, voting at such
election, may remove a county seat from a point more than five
miles from the geographical center of the county to a point
within five miles of such center, in either case the center to be
determined by a certificate from the Commissioner of the General
Land Office.

AKTICLB X.

RAILROADS.

Section 1. Any railroad corporation or association, organi-
nized under the law for the purpose, shall have the right to
construct and operate a railroad between any points within this
State, and to connect at the State line with railroads of other
States. Every railroad company shall have the right with its
road to intersect, connect with or cross any other railroad ; and
shall receive and transport each the other's passengers, tonnage
and cars, loaded or empty, without delay or discrimination, un-
der such regulations as shall be prescribed by law.

Appendix 399

Sec. 2. Railroads heretofore constructed, or that may here-
after be constructed in this State, are hereby declared highways,
and railroad companies common carriers. The Legislature shall
pass laws to correct abuses and prevent unjust discrimination
and extortion in the rates of freight and passenger tariffs on the
different railroads in this State; and shall from time to time
pass laws establishing reasonable maximum rates of charges for
the transportation of passengers and freight on said railroads,
and enforce all such laws by adequate penalties. [Const. 1876.]

[Sec. 2, Art. 10, declared adopted December 19, 1890.]

Sec. 2. Railroads heretofore constructed or which may here-
after be constructed in this State are hereby declared public high-
ways and railroad companies common carriers. The Legislature
shall pass laws to regulate railroad freight and passenger tariffs,
to correct abuses, and prevent unjust discrimination and extortion
in the rates of freight and passenger tariffs on the different rail-
roads in this State, and enforce the same by adequate penalties ;
and to the further accomplishment of these objects and purposes
may provide and establish all requisite means and agencies in-
vested with such powers as may be deemed adequate and ad-
visable.

Sec. 3. Every railroad or other corporation, organized or
doing business in this State under the laws or authority thereof,
shall have and maintain a public office or place in this State for
the transaction of its business, where transfers of stock shall be
made, and where shall be kept, for inspection by the stockholders
of such corporation's books, in which shall be recorded the amount
of capital stock subscribed, the names of the owners of the
stock, the amounts owned by them respectively, the amount of
stock paid, and by whom, the transfer of said stock, with the
date of the transfer, the amount of its assets and liabilities, and
the names and places of residence of its officers. The directors
of every railroad company shall hold one meeting annually in
this State, public notice of which shall be given thirty days
previously, and the president or superintendent shall report
annually under oath to the Comptroller or Governor their acts
and doings, which report shall include such matters relating
to railroads as may be prescribed by law. The Legislature shall

400 Appendix

pass laws enforcing by suitable penalties the provisions of this
section.

Sec. 4. The rolling stock and all other movable property be-
longing to any railroad company or corporation in this State
shall be considered personal property, and its real and personal
property, or any part thereof, shall be liable to execution and
sale in the same manner as the property of individuals; and
the Legislature shall pass no laws exempting any such property
from execution and sale.

Sec. 5. No railroad or other corporation, or the lessees, pur-
chasers or managers of any railroad corporation, shall con-
solidate the stock, property or franchises of such corporation
with, or lease or purchase the works or franchises of, or in any
way control any railroad corporation owning or having under
its control a parallel or competing line; nor shall any officer of
such railroad corporation act as an officer of any other railroad
corporation owning or having the control of a parallel or com-
peting line.

Sec. 6. No railroad company organized under the laws of
this State shall consolidate by private or judicial sale or other-
wise with any railroad company organized under the laws of any
other State or of the United States.

Sec. 7. No law shall be passed by the Legislature granting
the right to construct and operate a street railroad within any
city, town or village, or upon any public highway without first
acquiring the consent of the local authorities having control
of the street or highway proposed to be occupied by such street
railroad.

Sec. 8. No railroad corporation in existence at the time of
the adoption of this Constitution shall have the benefit of any
future legislation except on condition of complete acceptance of
all the provisions of this Constitution applicable to railroads.

Sec. 9. No railroad hereafter constructed in this State shall
pass within a distance of three miles of any county seat without
passing through the same, and establishing and maintaining a
depot therein, unless prevented by natural obstacles, such as
streams, hills or mountains ; provided, such towns or its citizens
shall grant the right of way through its limits and sufficient
ground for ordinary depot purposes.

Appendix 401

AETICLE XI.

MUNICIPAL CORPORATIONS.

Section 1. The several counties of this State are hereby
recognized as legal subdivisions of the State.

Sec. 2. The construction of jails, courthouses and bridges,
and the establishment of county poorhouses and farms and the
laying out, construction and repairing of county roads shall be
provided for by general laws.

Sec. 3. No county, city or other municipal corporation shall
hereafter become a subscriber to the capital of any private cor-
poration or association, or make any appropriation or donation
to the same, or in any wise loan its credit ; but this shall not be
construed to in any way affect any obligation heretofore under-
taken pursuant to law.

Sec. 4. Cities and towns having a population of ten thous-
and inhabitants or less may be chartered alone by general law.
They may levy, assess and collect an annual tax to defray the
current expenses of their local government, but such tax shall
never exceed, for any one year, one-fourth of one per cent, and
shall be collectible only in current money. And all license and
occupation tax levied, and all fines, forfeitures, penalties and
other dues accruing to cities and towns shall be collectible only
in current money. [Const. 1876.]

[Sec. 4, Art. 11, declared adopted September 24, 1909.]

Sec. 4. Cities and towns having a population of five thous-
and inhabitants or less may be chartered alone by general law.
They may levy, assess and collect an annual tax to defray the
cxttrent expenses of their local government, but such tax shall
never exceed, for any one year, one-fourth of one per cent, and
shall be collectible only in current money. And all licenses
and occupation taxes levied, and all fines, forfeitures, penalties
and other dues accruing to cities and towns shall be collectible
only in current money.

Sec. 5. Cities having more than ten thousand inhabitants
may have their charters granted or amended by special act of

402 Appendix

the Legislature, and may levy, assess and collect such taxes as
may be authorized by law, but no tax for any purpose shall
ever be lawful, for any one year, which shall exceed two and
one-half per cent of the taxable property of such city; and no
debt shall ever be created by any city unless at the same time
provision be made to assess and collect annually a sufficient
sum to pay the interest thereon and create a sinking fund of
at least two per cent thereon. [Const. 1876.]

[Sec. 5, Art. 11, declared adopted September 24, 1909.]

Sec. 5. Cities having more than five thousand inhabitants
may have their charters granted or amended by special act of
the Legislature, and may levy, assess and collect such taxes as
may be authorized by law, but no tax for any purpose shall
ever be lawful for any one year which shall exceed two and
one-half per cent of the taxable property of such city; and no
debt shall ever be created by any city or town unless at the
same time provision be made to assess and collect annually a
sufficient sum to pay the interest thereon and create a sinking
fund of at least two per cent thereon.

Sec- 5. Cities having more than five thousand (5000) in-
habitants may by a majority vote of the qualified voters of
said city, at an election held for that purpose, adopt or amend
their charters, subject to such limitations as may be prescribed
by the Legislature, and providing that no charter or any
ordinance passed under said charter shall contain any pro-
vision inconsistent with the Constitution of the State, or of
the general laws enacted by the Legislature of this State; said
cities may levy, assess and collect such taxes as may be author-
ized by law or by their charters; but no tax for any purpose
shall ever be lawful for any one year, which shall exceed two
and one-half per cent of the taxable property of such city, and
no debt shall ever be created by any city, unless at the same
time provision be made to assess and collect annually a suf-
ficient sum to pay the interest thereon and creating a sinking
fund at least of two per cent, thereon; and provided, further,
that no city charter shall be altered, amended or repealed
oftener than every two years. — [Adopted November 5, 1912.]

Sec. 6. Counties, cities and towns are authorized, in such
mode as may now or may hereafter be provided by law, to

Appendix 403

levy, assess and collect the taxes necessary to pay the interest
and provide a sinking fund to satisfy any indebtedness hereto-
fore legally made and undertaken; but all such taxes shall be
assessed and collected separately from that levied, assessed and
collected for current expenses of municipal government and
shall, when levied, specify in the act of levying the purpose
therefor, and such taxes may be paid in the coupons, bonds
or other indebtedness for the payment of which such tax may
have been levied.

Sec. 7. All counties and cities bordering on the coast of the
Gulf of Mexico are hereby authorized, upon a vote of two-
thirds of the taxpayers therein (to be ascertained as may be
provided by law), to levy and collect such tax for construction
of sea walls, breakwaters or sanitary purposes, as may be
authorized by law, and may create a debt for such works and
issue bonds in evidence thereof. But no debt for any purpose
shall ever be incurred in any manner by any city or county
unless provision is made, at the time of creating the same, for
levying and collecting a sufficient tax to pay the interest
thereon and provide at least two per cent as a sinking fund;
and the condemnation of the right of way for the erection of
such work shall be fully provided for.

Sec. 8. The counties and cities on the gulf coast being
subject to calamitous overflows, and a very large proportion of
the general revenue being derived from those otherwise pros-
perous localities, the Legislature is specially authorized to aid,
by donation of such portion of the public domain as may be
deemed proper, and in such mode as may be provided by law,
the construction of sea walls, or breakwaters, such aid to be
proportioned to the extent and value of the works constructed
or to be constructed in any locality.

Sec. 9. The property of counties, cities and towns owned
and held only for public purposes, such as public buildings
and the sites therefor, fire engines and the furniture thereof,
and all property used or intended for extinguishing fires,
public grounds and all other property devoted exclusively to
the use and benefit of the public, shall be exempt from forced
sale and from taxation; provided, nothing herein shall prevent

404 Appendix

the enforcement of the vendor's lien, the mechanic's or
builder's lien, or other liens now existing.

Sec. 10. The Legislature may constitute any city or town
a separate and independent school district. And when the
citizens of any city or town have a charter, authorizing the
city authorities to levy and collect a tax for the support and
maintenance of a public institution of learning, such tax may
hereafter be levied and collected, if, at an election held for that
purpose, two-thirds of the taxpayers of such city or town shall
vote for such tax.

ARTICLE XII.

PRIVATE CORPORATIONS.

Section 1. No private corporation shall be created except
by general laws.

Sec. 2. General laws shall be enacted providing for the
creation of private corporations, and shall therein provide fully
for the adequate protection of the public and of the individual
stockholder.

Sec- 3. The right to authorize and regulate freights, tolls,
wharfage or fares, levied and collected or proposed to be
levied and collected by individuals, companies or corporations
for the use of highways, landings, wharves, bridges and ferries,
devoted to public use, has never been and never shall be re-
linquished or abandoned by the State, but shall always be
under legislative control and depend upon legislative authority.

Sec. 4. The first Legislature assembled after the adoption
of this Constitution shall provide a mode of procedure by the
Attorney-General and district or county attorneys, in the name
and behalf of the State, to prevent and punish the demanding
and receiving or collection of any and all charges, as freight,
wharfage, fares or tolls, for the use of property devoted to the
public, unless the same shall have been specially authorized
by law.

Seo. 5. All laws granting the right to demand and collect
freights, fares, tolls or wharfage, shall at all times be subject
to amendment, modification or repeal by the Legislature.

Appendix 405

Sec. 6. No corporation shall issue stock or bonds except for
money paid, labor done, or property actually received, and all
ficitious increase of stock or indebtedness shall be void.

Sec. 7. Nothing in this article shall be construed to divest
or affect rights guaranteed by any existing grant or statute
of this State or of the Republic of Texas.

ARTICLE XIII.

SPANISH AND MEXICAN LAND TITLES.

Section 1. All fines, penalties, forfeitures and escheats,
which have heretofore accrued to the Republic and State of
Texas, under their Constitution and laws, shall accrue to the
State under this Constitution; and the Legislature shall pro-
vide a method for determining what lands have been forfeited,
and for giving effect to escheats; and all such rights of for-
feiture and escheat to the State shall, ipso facto, inure to the
protection of the innocent holders of junior titles, as provided
in sections 2, 3 and 4 of this article.

Sec. 2. Any claim of title or right to land in Texas, issued
prior to the 13th day of November, 1835, not duly recorded
in the county where the land was situated at the time of such
record; or not duly archived in the General Land Office; or
not in the actual possession of the grantee thereof, or some
person claiming under him, prior to the accruing of junior
title thereto from the sovereignty of the soil, under circum-
stances reasonably calculated to give notice to said junior
grantee, has never had, and shall not have, standing or effect
against such junior title, or color of title, acquired without
such or actual notice of such prior claim of title or right; and
no condition annexed to such grants, not archived or recorded,
or occupied as aforeasid, has been, or ever shall be released or
waived, but actual performance of all such conditions, shall be
proved by the person or persons claiming under such title or
claim of right in order to maintain action thereon, and the holder
of such junior title, or color of title, shall have all the rights of
the government which have heretofore existed, or now exist,
arising from the nonperformance of all such conditions.

406 Appendix

Sec. 3. Nonpayment of taxes on any claim of title to land
dated prior to the 13th day of November, 1835, not recorded
or archived, as provided in Section 2, by the person or persons
so claiming or those under whom he or they so claim, from that
date up to the date of the adoption of this Constitution shall
be held to be a presumption that the right thereto has re-
verted to the State, and that said claim is a state demand, which
presumption shall only be rebutted by payment of all taxes on
said lands, State, county and city or town, to be assessed on
the fair value of such lands by the Comptroller, and paid to
him, without commutation or deduction for any part of the
above period.

Sec. 4. No claim of title or right to land, which issued
prior to the 13th day of November, 1835, which has not been
duly recorded in the county where the land was situated at
the time of such record, or which has not been duly archived
in the General Land Office, shall ever hereafter be deposited in
the General Land Office, or recorded in this State, or de-
lineated on the maps, or used as evidence in any of the courts
of this State, and the same are stale claims; but this shall not
affect such rights or presumptions as arise from actual pos-
session. By the words "duly recorded," as used in sections
2 and 4 of this article, it is meant that such claim of title or
right to land shall have been recorded in the proper office, and
that mere errors in the certificate of registration, or informal-
ity, not affecting the fairness and good faith of the holder
thereof, with which the record was made, shall not be held to
vitiate such record.

Sec. 5. All claims, locations, surveys, grants and titles of
any kind which are declared null and void by the Constitution
of the Republic or State of Texas are, and the same shall re-
main forever null and void.

Sec. 6. The Legislature shall pass stringent laws for the
detection and conviction of all forgers of land titles, and may
make such appropriations of money for that purpose as may be
necessary.

Sec. 7. Sections 2, 3, 4 and 5 of this article shall not be
so construed as to set aside or repeal any law or laws of the
Republic or State of Texas, releasing the claimants of head-

Appendix 407

rights or colonists of a league of land, or less, from com-
pliance with the conditions on which their grants were made.

ARTICLE XIV.

PUBLIC LANDS AND LAND OFFICE.

Section 1. There shall be one General Land Office in the
State, which shall be at the seat of government, where all land
titles which have emanated or may hereafter emanate from
the State shall be registered, except those titles the registration
of which may be prohibited by this Constitution. It shall be
the duty of the Legislature at the earliest practicable time
to make the Land Office self-sustaining, and from time to
time the Legislature may establish such subordinate offices as
may be deemed necessary.

Sec. 2. All unsatisfied genuine land certificates barred by
Section 4, Article 10 of the Constitution of 1869, by reason
of the holders or owners thereof failing to have them surveyed
and returned to the Land Office by the 1st day of January,
1875, are hereby revived. All unsatisfied genuine land certifi-
cates now in existence shall be surveyed and returned to the
General Land Office within five years after the adoption of
this Constitution, or be forever barred; and all genuine land
certificates hereafter issued by the State shall be surveyed and
returned to the General Land Office within five years after
issuance, or be forever barred; provided, that all genuine land
certificates heretofore or hereafter issued shall be located, sur-
veyed and patented only upon vacant and unappropriated
public domain, and not upon any land titled or equitably
owned under color of title from the sovereignty of the State,
evidence of the appropriation of which is on the county
records or in the General Land Office; or when the appropria-
tion is evidenced by the occupation of the owner, or of some
person holding for him.

Sec. 3. The Legislature shall have no power to grant any
of the lands of this State to any railway company except upon
the following restrictions and conditions:

First. That there shall never be granted to any such cor-

408 Appendix

poration more than sixteen sections to the mile, and no reser-
vation of any part of the public domain for the purpose of
satisfying such grant shall ever be made.

Second. That no land certificate shall be issued to such com-
pany until they have equipped, constructed and in running
order at least ten miles of road, and on failure of such com-
pany to comply with the terms of its charter, or to alienate
its lands at a period fixed by law, in no event to exceed twelve
years from the issuance of the patent, all said land shall be
forfeited to the State and become a portion of the public do-
main, and liable to location and survey. The Legislature shall
pass general laws only, to give effect to the provisions of this
section.

Sec. 4. No certificate for land shall be sold at the Land
Office except to actual settlers upon the same, and in lots not
to exceed one hundred and sixty acres.

Sec. 5. All lands heretofore or hereafter granted to rail-
road companies, where the charter or law of the State required
or shall hereafter require their alienation within a certain
period, on pain of forfeiture, or is silent on the subject of
forfeiture, and which lands have not been or shall not here-
after be alienated, in conformity with the terms of their
charters and the laws under which the grants were made, are
hereby declared forfeited to the State, and subject to pre-
emption, location and survey, as other vacant lands. All lands
heretofore granted to said railroad companies to which no
forfeiture was attached, on their failure to alienate, are not
included in the foregoing clause, but in all such last named
cases it shall be the duty of the Attorney-General, in every
instance where alienations have been or hereafter may be made,
to inquire into the same, and if such alienation has been made
in fraud of the rights of the State, and is colorable only, the
real and beneficial interest being still in such corporation, to
institute legal proceedings in the county where the seat of
government is situated, to forfeit such lands to the State, and
if such alienation be judicially ascertained to be fraudulent
and colorable as aforesaid, such lands shall be forfeited to the
State and become a part of the vacant public domain, liable
to pre-emption, location and survey.

Appendix 409

Sec. 6. To every head of a family without a homestead
there shall be donated one hundred and sixty acres of public
land, upon condition that he will select and locate said land,
and occupy the same three years, and pay the office fees due
thereon. To all single men of eighteen years of age and
upwards shall be donated eighty acres of public land, upon the
terms and conditions prescribed for heads of families.

Sec. 7. The State of Texas hereby releases to the owner or
owners of the soil all mines and minerals that may be on the
same, subject to taxation as other property.

Sec. 8. Persons residing between the Nueces river and the
Eio Grande, and owning grants for lands which emanated from
the government of Spain, or that of Mexico, which grants have
been recognized and validated by the State, by acts of the
Legislature, approved February 10, 1852, August 15, 1870,
and other acts, and who have been prevented from complying
with the requirements of said acts by the unsettled condition
of the country, shall be allowed until the 1st day of January,
1880, to complete their surveys and the plots thereof, and to
return their field notes to the General Land Office, and all
claimants failing to do so shall be forever barred; provided,
nothing in this section shall be so construed as to validate any
titles not already valid, or to interfere with the rights of third
persons.

ARTICLE XV.

IMPEACHMENT.

Section 1. The power of impeachment shall be vested in
the House of Representatives.

Sec. 2. Impeachment of the Governor, Lieutenant-Gov-
ernor, Attorney-General, Treasurer, Commissioner of the Gen-
eral Land Office, Comptroller, and the judges of the Supreme
Court, Court of Appeals and district courts, shall be tried by
the Senate. '

Sec. 3. When the Senate is sitting as a court of impeach-
ment, the Senators shall be on oath, or affirmation, impartially
to try the party impeached, and no person shall be convicted

410 Appendix

"without the concurrence of two-thirds of the Senators present.

Sec. 4. Judgment in cases of impeachment shall extend
only to removal from office, and disqualification from holding
any office of honor, trust, or profit, under this State. A party
convicted on impeachment shall also be subject to indictment,
trial and punishment, according to law.

Sec. 5. All officers against whom articles of impeachment
may be preferred shall be suspended from the exercise of the
duties of their office during the pendency of such impeachment.
The Governor may make a provisional appointment to fill the
vacancy occasioned by the suspension of an officer until the
decision on the impeachment.

Sec. 6. Any judge of the district courts of the State who is
incompetent to discharge the duties of his office, or who shall
be guilty of partiality, or opression, or other official miscon-
duct, or whose habits and conduct are such as to render him
unfit to hold such office, or who shall negligently fail to per-
form his duties as judge, or who shall fail to execute in a
reasonable measure the business in his courts, may be removed
by the Supreme Court. The Supreme Court shall have original
jurisdiction to hear and determine the causes aforesaid when
presented in writing, upon the oaths, taken before some judge
of a court of record, of not less than ten lawyers, practicing in
the courts held by such judge, and licensed to practice in the
Supreme Court; said presentment to be founded either upon
the knowledge of the persons making it or upon the written
oaths as to facts of creditable witnesses. The Supreme Court
may issue all needful process and prescribe all needful rules
to give effect to this section. Causes of this kind shall have
precedence and be tried as soon as practicable.

Sec. 7. The Legislature shall provide by law for the trial
and removal from office of all officers of this State, the modes
for which have not been provided in this Constitution.

ADDRESS.

Sec. 8. The judges of the Supreme Court, Court of Ap-
peals and district courts, shall be removed by the Governor on
the address of two-thirds of each House of the Legislature, for

Appendix 411

willful neglect of duty, incompetency, habitual drunkenness,
oppression in office, or other reasonable cause which shall not
be sufficient ground for impeachment; provided, however, that
the cause or causes for which such removal shall be required shall
be stated at length in such address and entered on the journals
of each house; and provided further, that the cause or causes
shall be notified to the judge so intended to be removed, and he
shall be admitted to a hearing in his own defense before any
vote for such address shall pass; and in all such cases the vote
shall be taken by yeas and nays and entered on the journals
of each house, respectively.

ARTICLE XVI.

GENERAL PBOVESIONS.

Section 1. Members of the Legislature and all officers, before
they enter upon the duties of their offices, shall take the fol-
lowing oath or affirmation: "I, , do solemnly

swear (or affirm), that I will faithfully and impartially dis-
charge and perform all the duties incumbent upon me as

, according to the best of my skill and ability,

agreeably to the Constitution and laws of the United States
and of this State; and I do further solemnly swear (or affirm),
that since the adoption of the Constitution of this State, I
being a citizen of this State, have not fought a duel with
deadly weapons, within this State or out of it, nor have I sent
or accepted a challenge to fight a duel with deadly weapons, nor
have I acted as second in carrying a challenge, or aided, advised
or assisted any person thus offending. And I furthermore solemn-
ly swear (or affirm), that I have not, directly or indirectly, paid,
offered or promised to pay, contributed nor promised to contrib-
ute, any money or valuable thing, or promised any public office or
emolument, as a reward for the giving or withholding a vote at
the election at which I was elected (or, if the office is one of ap-
pointment, to secure my appointment) : So help me God."

Sec. 2. Laws shall be made to exclude from office, serving
on juries, and from the right of suffrage, those who may have
been or shall hereafter be convicted of bribery, perjury, forg-

412 Appendix

ery or other high, crimes. The privilege of free suffrage shall
be protected by laws regulating elections, and prohibiting
under adequate penalties all undue influence therein from
power, bribery, tumult, or other improper practice.

Sec. 3. The Legislature shall make provision whereby
persons convicted of misdemeanors and committed to the
county jails in default of payment of fines and costs, shall be
required to discharge such fines and costs by manual labor,
under such regulations as may be prescribed by law.

Sec. 4. Any citizen of this State who shall, after the adop-
tion of this Constitution, fight a duel with deadly weapons, or
send or accept a challenge to fight a duel with deadly weapons,
either within this State or out of it, or who shall act as second,
or knowingly assist in any manner those thus offending, shall
be deprived of the right of suffrage, or of holding any office
of trust or profit under this State.

Sec. 5. Every person shall be disqualified from holding
any offibe of profit or trust in this State who shall have been
convicted of having given or offered a bribe to procure his
election or appointment.

Sec. 6. No appropriation for private or individual pur-
poses shall be made. A regular statement under oath, and an
account of the receipts and expenditures of all public money,
shall be published annually, in such manner as shall be pre-
scribed by law.

Sec- 7. The Legislature shall in no case have power to issue
"treasury warrants," "treasury notes," or paper of any de-
scription intended to circulate as money.

Sec. 8. Bach county in the State may provide, in such
manner as may be prescribed by law, a manual labor poorhouse
and farm, for taking care of, managing, employing and sup-
plying the wants of its indigent and poor inhabitants.

Sec. 9. Absence on business of the State or of the United
States shall not forfeit a residence once obtained, so as to de-
prive any one of the right of suffrage, or of being elected or
appointed to any office, under the exceptions contained in this
Constitution.

Seo. 10. The Legislature shall provide for deductions from

Appendix

413

the salaries of public officers who may neglect the performance
ol any duty that may be assigned them by law.

Sec. 11. The legal rate of interest shall not exceed eight

mtVofinCr^' If th % absenee of "V contract as to fhe
rate „ m f 1 Tl b T C ° ntraCt P arties ma ^ a Sree upon any
rate not to exceed twelve per cent per annum. All interest

tX f^ ? 1S ^r"^ rate Sha11 be deemed us Ss
and the Legislature shall at its first session provide appropri-

1876 PamS and P enaltie s to prevent and punish usury. [Const.

[Sec. 11, Art. 16, declared adopted September 22, 1891.]

Sec. 11. All contracts for a greater rate of interest than
ten per centum per annum shall be deemed usurious, and the
first Legislature after this amendment is adopted shall pro-
vide appropriate pains and penalties to prevent the same; but
when no rate of interest is agreed upon, the rate shall not ex-
ceed six per centum per annum.

Sec. 12. No members of Congress, nor person holding or
exercising any office of profit or trust under the United States
or either of them, or under any foreign power, shall be eligible
as a member of the Legislature or hold or exercise any office
of profit or trust under this State.

Sec. 13. It shall be the duty of the Legislature to pass such
laws as may be necessary and proper to decide differences by
arbitration, when the parties shall elect that method of trial.
Sec. 14. All civil officers shall reside within the State, and
all district or county officers within their districts or counties,
and shall keep their offices at such places as may be required
by law; and failure to comply with this condition shall vacate
the office so held.

Sec. 15. All property, both real and personal, of the wife
owned or claimed by her before marriage, and that acquired
afterwards by gift, devise or descent, shall be her separate
property; and laws shall be passed more clearly defining the
rights of the wife in relation as well to her separate property as
that held in common with her husband. Laws shall also be passed
providing for the registration of the wife's separate property.

414 Appendix

Sec. 16. No corporate body shall hereafter be created, re-
newed or extended with banking or discounting privileges.
[Const. 1876.]

[Sec. 16, Art. 16, adopted November 8, 1904.]

Sec. 16. The Legislature shall by general laws, authorize
the incorporation of corporate bodies with banking and dis-
counting privileges, and shall provide for a system of State
supervision, regulation and control of such bodies which will
adequately protect and secure the depositors and creditors
thereof.

Each shareholder of such corporate body incorporated in
this State, so long as he owns shares therein, and for twelve
months after the date of any bona fide transfer thereof, shall
be personally liable for all debts of such corporate body ex-
isting at the date of such transfer, to an amount additional
to the par value of such shares so owned or transferred, equal
to the par value of such shares so owned or transferred.

No such corporate body shall be chartered until all of the
authorized capital stock has been subscribed and paid for in
full in cash. Such body corporate shall not be authorized to
engage in business at more than one place, which shall be
designated in its charter.

No foreign corporation, other than the National banks of the
United States, shall be permitted to exercise banking or dis-
counting privileges in this State.

Sec. 17. All officers within this State shall continue to per-
form the duties of their offices until their successors shall be
duly qualified.

Sec. 18. The rights of property and of action, which have
been acquired under the Constitution and the laws of the Re-
public and State, shall not be divested; nor shall any rights or
actions which have been divested, barred or declared null and
void by the Constitution of the Republic and State, be rein-
vested, renewed or reinstated by this Constitution; but the
same shall remain precisely in the situation which they were
before the adoption of this Constitution, unless otherwise
herein provided ; and provided further, that no cause of action
heretofore barred shall be revived.

Appendix 415

Sec. 19. The Legislature shall prescribe by law the qualifi-
cations of grand and petit jurors.

Sec. 20. The Legislature shall, at its first session, enact a
law whereby the qualified voters of any county, justice pre-
cinct, town or city, by a majority vote from time to time, may
determine whether the sale of intoxicating liquors shall be
prohibited within the prescribed limits. [Const. 1876.]

[Sec. 20, Art. 16, declared adopted September 22, 1891.]

Sec. 20. The Legislature shall at its first session enact a
law whereby the qualified voters of any county, justice's pre-
cinct, town, city (or such subdivision of a county as may be
designated by the commissioners court of said county) may
by a majority vote determine from time to time whether the
sale of intoxicating liquors shall be prohibited within the pre-
scribed limits.

Sec. 21. All stationery and printing, except proclamations
and such printing as may be done at the Deaf and Dumb
asylum, paper and fuel used in the legislative and other de-
partments of the government, except the judicial department
shall be furnished and the printing and binding of the laws,
journals and department reports, and all other printing and
binding, and the repairing and furnishing the halls and rooms
used for the meetings of the Legislature and its committees,
shall be performed under contract, to be given to the lowest
responsible bidder, below such maximum price and under such
regulations as shall be prescribed by law. No member or
officer of any department of the government shall be in any
way interested in such contract; and all such contracts shall
be subject to the approval of the Governor, Secretary of State
and Comptroller.

Sec. 22. The Legislature shall have the power to pass such
fence laws, applicable to any subdivision of the State or
county, as may be needed to meet the wants of the people.

Sec. 23. The Legislature may pass laws for the regulation
of live stock and the protection of stock-raisers in the stock-
raising portions of the State, and exempt from the operation of
such laws other portions, sections or counties; and shall have

416 Appendix

power to pass general and special laws for the inspection of
cattle, stock and hides, and for the regulation of brands; pro-
vided, that any local law thus passed shall be submitted to the
freeholders of the section to be affected thereby, and ap-
proved by them before it shall go into effect.

Sec. 24. The Legislature shall make provisions for laying
out and working public roads, for the building of bridges, and
for utilizing fines, forfeitures and convict labor to all these
purposes.

Sec. 25. That all drawbacks and rebatement of insurance,
freight, transportation, carriage, wharfage, storage, compress-
ing, baling, repairing, or for any other kind of labor or service,
of or to any cotton, grain or any other produce or article of
commerce, in this State, paid or allowed or contracted for to
any common carrier, shipper, merchant, commission merchant,
factor, agent, or middle man of any kind not the true and
absolute owner thereof are forever prohibited and it shall be
the duty of the Legislature to pass effective laws punishing all
persons in this State who pay, receive or contract for or re-
specting the same.

Sec. 26. Every person, corporation or company that may
commit a homicide, through willful act or omission or gross
neglect, shall be responsible in exemplary damages to the sur-
viving husband, wife, heirs of his or her body, or such of them
as there may be, without regard to any criminal proceeding
that may or may not be had in relation to the homicide.

Sec. 27. In all elections to fill vacancies of office in this
State, it shall be to fill the unexpired term only.

Sec. 28. No current wages for personal service shall ever
be subject to garnishment.

Sec. 29. The Legislature shall provide by law for defining
and punishing barratry.

Sec. 30. The duration of all offfces not fixed by this Con-
stitution shall never exceed two years. [Const. 1876.]

[Sec. 30, Art. 16, declared adopted December 22, 1894.]

Sec. 30. The duration of all offices not fixed by this Con-
stitution shall never exceed two years; provided, that when a

Appendix 417

railroad commission is created by law it shall be composed of
three commissioners, who shall be elected by the people at a
general election for State officers, and their term of office shall
be six years; provided, railroad commissioners first elected
after this amendment goes into effect, shall hold office as fol-
lows: One shall serve two years, and one four years, and one
six years, their terms to be decided by lot, immediately after
they shall have qualified. And one railroad commissioner
shall be elected every two years thereafter. In case of vacancy
in said office, the Governor of the State shall fill said vacancy
by appointment until the next general election.

Sec. 30a. The Legislature may provide by law that the
members of the Board of Eegents of the State University and
Board of Trustees or Managers, of the educational, eleemosy-
nary, and penal institutions of the State, and such boards
as have been, or may hereafter be established by law, may
hold their respective offices for the term of six (6) years, one-
third of the members of such boards to be elected or appointed
every two (2) years in such manner as the Legislature may
determine; vacancies in such offices to be filled as may be pro-
vided by law, and the Legislature shall enact suitable laws to
give effect to this section. [Adopted November 5, 1912.]

Sec. 31. The Legislature may pass laws prescribing the
qualifications of practitioners of medicine in this State, and to
punish persons for malpractice, but no preference shall ever
be given by law to any schools of medicine.

Sec. 32. The Legislature may provide by law for the estab-
lishment of a board of health and vital statistics, under such
rules and regulations as it may deem proper.

Sec. 33. The accounting officers of this State shall neither
draw nor pay a warrant upon the treasury in favor of any
person, for salary or compensation as agent, officer or ap-
pointee, who holds at the same time any other office or posi-
tion of honor, trust or profit, under this State or the United
States, except as prescribed in this Constitution.

Sec. 34. The Legislature shall pass laws authorizing the
Governor to lease or sell to the government of the United
States a sufficient quantity of the public domain of the State
necessary for the erection of forts, barracks, arsenals or mili-

418 Appendix

tary stations or camps, and for other needful military pur-
poses; and the action of the Governor therein shall be subject
to the approval of the Legislature.

Sec. 35. The Legislature shall at its first session pass laws
to protect laborers on public buildings, streets, roads, railroads,
canals and other similar public works, against the failure of
contractors and sub-contractors to pay their current wages
when due, and to make the corporation, company or individual
for whose benefit the work is done, responsible for their ulti-
mate payment.

Sec- 36. The Legislature shall at its first session provide
for the payment or funding, as they may deem best, of the
amounts found to be justly due to the teachers in the public
schools by the State, for service rendered prior to the 1st day
of July, 1873, and for the payment by the school districts in
the State of amounts justly due teachers of public schools by
such districts to January, 1876.

Sec. 37. Mechanics, artisans and material men, of every
class, shall have a lien upon the buildings and articles made or
repaired by them, for the value of their labor done thereon, or
material furnished therefor; and the Legislature shall provide
by law for the speedy and efficient enforcement of said liens.

Sec. 38. The Legislature may, at such time as the public
interest may require, provide for the office of Commissioner
of Insurance, Statistics and History, whose term of office,
duties and salary shall be prescribed by law.

Sec. 39. The Legislature may, from time to time, make
appropriations for preserving and perpetuating memorials of
the history of Texas, by means of monuments, statutes, print-
ing and documents of historical value.

Sec. 40. No person shall hold or exercise, at the same time,
more than one civil office of emolument, except that of justice
of the peace, county commissioner, notary public and post-
master, unless otherwise specially provided herein.

Sec. 41. Any person who shall, directly or indirectly, offer,
give or promise, any money or thing of value, testimonial,
privilege or personal advantage to any executive or judicial
officer or member of the Legislature, to influence him in the
performance of any of his public or official duties, shall be

Appendix 419

guilty of bribery, and be punished in such manner as shall
be provided by law. And any member of the Legislature, or
executive or judicial offilcer, who shall solicit, demand or re-
ceive, or consent to receive, directly or indirectly, for himself or
for another, from any company, corporation or person, any
money, appointment, employment, testimonial, reward, thing of
value or employment, or of personal advantage or promise
thereof, for his vote or official influence, or for withholding
the same, or with any understanding, expressed or implied,
that his vote or official action shall be in any way influ-
enced thereby, or who shall solicit, demand and receive any
such money or other advantage, matter or thing aforesaid,
for another, as the consideration of his vote or official influ-
ence, in consideration of the payment or promise of such
money, advantage, matter or thing to another, shall be held
guilty of bribery within the meaning of the Constitution
and shall incur the disabilities provided for said offenses, with
a forfeiture of the office they may hold, and such other ad-
ditional punishment as is or shall be provided by law.

Sec. 42. The Legislature may establish an inebriate asylum,
for the cure of drunkenness and the reform of inebriates.

Sec. 43. No man or set of men shall ever be exempted, re-
lieved or discharged from the performance of any public duty or
service imposed by general law, by any special law. Ex-
emptions from the performance of such public duty or service
shall only be made by general law.

Sec. 44. The Legislature shall prescribe the duties, and
provide for the election, by the qualified voters of each county
in this State, of a county treasurer and a county surveyor, who
shall have an office at the county seat, and hold their office for
two years, and until their successors are qualified; and shall
have such compensation as may be provided by law.

Sec. 45. It shall be the duty of the Legislature to provide
for collecting, arranging and safely keeping such records,
rolls, correspondence, and other documents, civil and military,
relating to the history of Texas as may be now in the posses-
sion of parties willing to confide them to the care and preserva-
tion of the State.

420 Appendix

Sec. 46. The Legislature shall provide by law for organiz-
ing and disciplining the militia of the State, in such manner
as they shall deem expedient, not incompatible with the Con-
stitution and laws of the United States.

Sec. 47. Any person who conscientiously scruples to bear
arms, shall not be compelled to do so, but shall pay an equiv-
alent for personal service.

Seo. 48. All laws and parts of laws now in force in the
State of Texas which are not Tepugnant to the Constitution of
the United States or to this Constitution, shall continue and
remain in force as the laws of this State until they expire by
their own limitation or shall be amended or repealed by the
Legislature.

Sec. 49. The Legislature shall have power, and it shall be
its duty, to protect by law from forced sale a certain portion
of the personal property of all heads of families, and also un-
married adults, male and female.

Seo- 50. The homestead of a family shall be, and is hereby
protected from forced sale, for the payment of all debts, except
for the purchase money thereof, or a part of such purchase
money, the taxes due thereon, or for work and material used
in constructing improvements thereon, and in this last case
only when the work and material are contracted for in writ-
ing, with the consent of the wife given in the same manner
as is required in making a sale and conveyance of the home-
stead; nor shall the owner, if a married man, sell the home-
stead without the consent of the wife, given in such manner as
may be prescribed by law. No mortgage, trust deed, or other
lien on the homestead shall ever be valid, except for the pur-
chase money therefor, or improvements made thereon, as here-
inbefore provided, whether' such mortgage, or trust deed or
other lien, shall have been created by the husband alone or
together with his wife; and all pretended sales of the home-
stead involving any condition of defeasance shall be void.

Sec. 51. The homestead not in a town or city shall consist
of not more than two hundred acres of land, which may be in
one or more parcels, with the improvements thereon; the home-
stead in a city, town or village shall consist of lot or lots, not
to exceed in value five thousand dollars at the time of their

Appendix 421

designation as the homestead, without reference to the value
of any improvements thereon; provided, that the same shall
be used for the purposes of a home, or as a place to exercise
the calling or business of the head of the family; provided,
also, that any temporary renting of the homestead shall not
change the character of the same, when no other homestead has
been acquired.

Sec- 52. On the death of the husband or wife, or both,
the homestead shall descend and vest in like manner as other
real property of the deceased, and shall be governed by the
same laws of descent and distribution, but it shall not be
partitioned among the heirs of the deceased during the life-
time of the surviving husband or wife, or so long as the survivor
may elect to use or occupy the same as a homestead, or so
long as the guardian of the minor children of the deceased may
be permitted, under the order of the proper court having jur-
isdiction, to use and occupy the same.

Sec. 53. That no inconvenience may arise from the adop-
tion of this Constitution, it is declared that all proeess and
writs of all kinds which have been Or may be issued and not
returned or executed when this Constitution is adopted, shall
remain valid, and shall not be in any way affected by the
adoption of this Constitution.

Sec. 54. It shall be the duty of the Legislature to provide
for the custody and maintenance of indigent lunatics, at the
expense of the State, under such regulations and restrictions
as the Legislature may prescribe.

Sec 55. The Legislature may provide annual pensions, not
to exceed one hundred and fifty dollars per annum, to surviv-
ing soldiers or volunteers in the war between Texas and Mex-
ico, from the commencement of the revolution in 1835, until
the first of January, 1837 ; and also to the surviving signers of
the declaration of independence of Texas ; and to the surviving
widows, continuing unmarried, of such soldiers and signers;
provided, that no such pension be granted, except to those
in indigent circumstances, proof of which shall be made before
the county court of the county where the applicant resides, in
such manner as may be provided by law.

Sec. 56. The Legislature shall have no power to appropri-

422 Appendix

ate any of the public money for the establishment and main-
tenance of a bureau of immigration, or for any purpose of
bringing immigrants to this State.

Sec. 57. Three million acres of the public domain are
hereby appropriated and set apart for the purpose of erecting
a new State Capitol and other necessary public buildings at
the seat of government, said lands to be sold under the direc-
tion of the Legislature; and the Legislature shall pass suitable
laws to carry this section into effect.

Sec. 58. The Board of Prison Commissioners charged by
law with the control and management of the State pris-
ons, shall be composed of three members, appointed by the
Governor, by and with the consent of the Senate, and whose
term of office shall be six years, or until their successors are ap-
pointed and qualified; provided that the terms of office of the
Board of Prison Commissioners first appointed after the adop-
tion of this amendment shall begin on January 20th of the year
following the adoption of this amendment, and shall hold office
as follows: One shall serve two years, one four years, and one
six years. Their terms to be decided by lot after they shall
have qualified, and one Prison Commissioner shall be appointed
every two years thereafter. In case of a vacancy in said office
the Governor of this State shall fill said vacancy by appoint-
ment for the unexpired term thereof. [Adopted November
5, 1912.]

ARTICLE XVII.

MODE OP AMENDING THE CONSTITUTION OF THIS STATE.

Section 1. The Legislature, at any biennial session, by a
vote of two-thirds of all the members elected to each house,
to be entered by yeas and nays on the journals, may propose
amendments to the Constitution, to be voted upon by the
qualified electors for members of the Legislature, which pro-
posed amendments shall be duly published once a week for
four weeks, commencing at least three months before an election,
the time of which shall be specified by the Legislature, in one
weekly newspaper of each county, in which such newspaper

Appendix 423

may be published; and it shall be the duty of the several
returning officers of said election to open a poll for and make
returns to the Secretary of State of the number of legal votes
cast at said election for and against said amendment; and if
more than one be proposed, then the number of votes cast for
and against each of them; and if it shall appear from said
return that a majority of the votes cast have been cast in favor
of any amendment the said amendment so receiving a majority
of the votes cast shall become a part of this Constitution, and
proclamation shall be made by the Governor thereof.

INDEX

PAGE

Alamo, a story of the 47

Atchison, Daniel, Supreme Court clerk _ 320

Balunger, William Pitt, Associate Justice Supreme Court... Ill

Besignation _ Ill

Sketch of 114

Baylor, B. E. B., Associate Justice Supreme Court of the

Bepublic 16

Sketch of - 17

Bell, James H., succeeds Associate Justice Wheeler. 55

Sketch of 55

District Judge of First District 56

Valuable services to Texas 56

Bonner, Micajah H., Associate Justice Supreme Court 136

Sketch of - 137

Branch, Edward T., Associate Justice of Supreme Court of

Bepublic 16

Brief, a model — 135

Brown, W. G., Supreme Court clerk. 320

Brown, Thomas J., succeeds Justice Henry, Associate Jus-
tice of Supreme Court 217

Sketch of - - - 217

Succeeds Chief Justice Gaines — 268

Death of 272

Birdsall, John, succeeds Collingsworth as Chief Justice of

Bepublic •■■■- 10

Caldwell, Associate Justice, removed from office by mili-
tary commandant 95

Chambers, Thomas Jefferson, Judge of Superior Judicial

Court of Province of Texas 4

Sketch of - -~ 4

Surveyor General of Province of Texas.... 5

426 Index

PAGE

Chambers, Thomas Jefferson — ConMnwd.

Address to the people — - 5

Historical document 6

Valuable assistance to Texas..- — 6

Delegate to Secession Convention 6

Unsuccessful candidate for Governor. 6

Death of _ 6

Coahuila and Texas, Internal State of the Bast. 1

Superior State Tribunal of. 2

Novel restriction upon powers. 3

Coke, Richard, elected Associate Justice Supreme Court of

Texas - 82

Sketch of 82

The conspiracy .'. - 83

Governor of Texas 82

United States Senator 84

Collingsworth, James, first Chief Justice Supreme Court

of Republic 9

Sketch of 9

Member of Executive Council of Revolution 9

Gallant conduct on the field of San Jacinto 9

Secretary of State 9

Commissioner to United States 9

Candidate for President of Republic _ 9

Death of , 10

Connerlt, F. T., Supreme Court clerk. * 320

Corzine, Shelby, Associate Justice Court of Republic 16

Courts of Civil Appeals, creation of 213

Courts, Military, practice and procedure in „ 88

Commission of Arbitration and Award, creation of 139

Cox vs. Robinson; historical outline of mineral reserva-
tion provision of the Constitution 287

Cullen, Ezekiel "W., Associate Justice Supreme Court of

Republic 16

Denman, Leroy G., Associate Justice of Supreme Court of

Texas - 232

Sketch of 232

Resignation of _ 238

Index 427

PAGE

Denison, James, succeeds Associate Justice Caldwell 95

DeNormandie, W. P., Supreme Court clerk 320

Devine, Thomas J., Associate Justice of the Supreme Court... Ill

Sketch of Ill

Romantic story of Arrendondo's revolution 112

Dibrell, Joseph B., succeeds Justice "Williams 268

Sketch of 268

Domain, Public, interesting data concerning. 191

Donley, Stockton P., Associate Justice Supreme Court. 82

Sketch of 86

Duval, Thomas H., Supreme Court Reporter. 307

Evans, Lemuel Dale, Associate Justice of the Supreme

Court 95

Sketch of 95

Peculiar conception of judicial qualifications. 96

Resignation of 96

Fannin, J. "W., commissioned to procure men and munitions

for Texas army 12

Fetching Illustration ] 67

Fontaine, Henbt W., Associate Justice Supreme Court of

Republic _ 16

"Fourth Estate" hurricane in legislative teapot 207

Franklin, Benjamin C, Associate Justice Supreme Court

of Republic 16

Sketch of 17

Gaines, Reuben R., succeeds Associate Justice Robertson 170

Sketch of 170

Succeeds Chief Justice Stayton 232

Resignation of - - 268

Garrett, William F., Supreme Court clerk 320

Gould, Robert S., Associate Justice Supreme Court. Ill

Sketch of - HI

Elected Associate Justice 129

Appointed Chief Justice 146

Gray, Peter W., Associate Justice Supreme Court. — Ill

Resignation of Ill

Sketch of - -~ 115

Gray, George H., Supreme Court clerk. 320

428 Index

PAGE

Grayson, Peter W., commissioner to United States 9

Candidate for President of Republic 9

Death of 10

Green, Thomas, Supreme Court clerk 320

Grigsby vs. Reib, legal status of marriage contracts 293

' ' Half-way Courts ' ' 224

Hamilton, A. J., Justice of Supreme Court. 87

Sketch of 91

Member State Legislature 91

State Senator 92

Presidential elector 91

Congressman 92

Brigadier-General in Federal army 92

Provisional Governor of Texas 92

Resignation of 95

Hansford, John M., Associate Justice of Supreme Court of

Republic 16

Hartley, Oliver Cromwell, Supreme Court reporter 309

Sketch of '. 309

Hawkins, William E., elected Associate Justice Supreme

Court to succeed Justice Dibrell 272

Re-elected 272

Sketch of 273

Hemphill, John, Chief Justice of the Supreme Court of the

Republic 15

Sketch of 15

Adjutant-General of the Republic 16

Member of ill-starred Mier expedition 16

Delegate to Convention of 1845 16

United States Senator from Texas 16

Delegate to Montgomery Convention 16

Member of Confederate Congress 16

Chief Justice Supreme Court of Texas. 29

Death of 16

Henry, John L., succeeds Associate Justice Walker. 185

Sketch of 185

Resignation of 217

Honey, George W., Supreme Court clerk 320

Index 429

PAGE

Hutchinson, Anderson, Associate Justice Supreme Court

of Eepublic _ lg

Ireland, John, succeeds Associate Justice Devine 127

Sketch of _. 127

Member of Constitutional Conventions, 1861 and 1866... 128

District judge : _ 128

"Impediment to reconstruction" 128

Member of Texas Legislature 128

Governor of Texas. _ 128

Popularity of 129

Johnson, Jambs F., Supreme Court clerk 320

Johnson, Thomas, Associate Justice Supreme Court of Re-
public „ 17

Jones, Oliver, representative of Texas in Coahuila and

Texas Congress 5

Jones, William, Associate Justice Supreme Court of Re-
public. 17

Jose, Mission San, a story of the past. 38

Jack, Patrick, Associate Justice Supreme Court of Repub-
lic 17

Jackson, A. M., Supreme Court Reporter, sketch of 312

Jones, John B., Associate Justice Supreme Court of Re-
public 17

Jones, "William J., Associate Justice Supreme Court of Re-
public 17

Judicial Dishonor, depths of. 97

Judicial Humor 33

Law, County Judges not required to know the 188

Lamar, Mirabeau B., President of Republic 10

Lipscomb, Abner S., Associate Justice Supreme Court of

Texas 29

Sketch of 30

Assists in suppressing Indian hostilities fomented by

England against America 31

Chief Justice of Supreme Court of Alabama 31

Member Alabama legislature 31

Secretary of State under President Lamar 31

Member of Convention 1845 31

430 Index

PAGE

Lindsay, Livingston, Justice of Supreme Court of Texas 87

Sketch of 90

District judge _ 91

County attorney 91

Death of 91

Middeton vs. Texas Light & Power Company, constitution-
ality of Employers' Liability Act). 304

Mills, John T., Associate Justice Supreme Court of Re-

public 16

Missouri, Kansas & Texas Railroad Company op Texas vs.
State, application of Railroad Commission's "thirty-
minute" order to interstate trains 296

Moore, George Fleming, succeeds Associate Justice Rob-
erts 69

Sketch of 69

Able denunciation of military encroachment upon civil

tribunals 72

Chief Justice 82

Associate Justice _ Ill

Chief Justice _ __ 136

Resignation of 146

Supreme Court Reporter 311

Moore, N. J., Supreme Court clerk 320

Morris, Richard, Associate Justice Supreme Court of Re-
public 16

Sketch of _ 18

Morrill, Amos, Associate Justice Supreme Court 87

Sketch of 89

United States District Judge 90

Resignation of 90

Death of 90

Morse, Charles S., Supreme Court clerk 320

Nash Hardware Company vs. Morris, police power de-
fined 285

Norton, M. P., Associate Justice of Supreme Court of Re-
public 16

Ochiltree, "William B., Associate Justice Supreme Court

of Republic 16

Index 431

PAGE

Ogden, "Wesley, succeeds Justice Evans as Presiding Judge

of Supreme Court _ _ 97

Opinion, noteworthy, by Justice Lipscomb 38

Opinion, by great judge. 121

Padttj.a, Antonio, land commissioner for Eastern Texas. 5

Paschal, Geokoe W., Supreme Court Reporter 314

Phillips, Nelson, Succeeds Justice Ramsay. 272

Elected Associate Justice of Supreme Court. 272

Sketch of - _ 272

Succeeds Chief Justice Brown 272

Elected Chief Justice 272

Privileged matter, law of libel _ 160

Procedure, attempted reform of judicial „ 213

' ' Public History, ' ' significant 158

Ramsay, "William F., appointed Associate Justice Supreme

Court 268

Sketch of 268

Resignation of 272

Reporter, an irate. _ 93

Reeves, Reuben A., appointed Associate Justice Ill

Reeves, Stephe D., Supreme Court clerk 320

Robards, Charles L., Supreme Court Reporter.... 312

Roberts, Oran M., succeeds Associate Justice Lipscomb 49

Sketch of - 49

Member of Alabama legislature 51

District attorney - 51

United States Senator from Texas, not permitted to

qualify 51

Instructor in Science of Government 51

Governor of Texas. 51

Law professor, University of Texas 51

A noble sacrifice 53

Resignation to join Confederate army 69

Succeeds Chief Justice "Wheeler 81

Appointed Chief Justice - Hi-
Elected Chief Justice 129

Resignation of 136

432 Index

PAGE

Roberts, R. P., Supreme Court clerk _ 320

Robertson, Sawnie, succeeds Associate Justice West 168

Sketch of 168

Robinson, James, Associate Justice Supreme Court of Re-
public 16

Sketch of 18

Rodriguez, Ex parte, unspeakable judicial infamy. 97

Rusk, Thomas Jefferson, Chief Justice of Republic „.. 10

Sketch of 10

Commissary of Texas army 11

At the siege of San Antonio 12

Commissioned to procure men and munitions for Texas

army 12

Secretary of War 12

Appeal to the patriotism of Texans. 12

Heroism on the field of San Jacinto 13

Real hero of the Battle of San Jacinto 12

Commander-in-Chief Texas army 13

Member President Houston's cabinet : 13

Member of Congress of the Republic 13

Declination to offer for President of Republic 13

Suppresses revolution of enemies of the Republic 13

United States Senator from Texas 13

Major-General of militia 13

Death of 14

Scott, John, Associate Justice of Supreme Court of Re-
public 17

Scurry, Richardson A., Associate Justice Supreme Court of

Republic 17

Self-defense, "hip-pocket movement" variety 125

' ' Semicolon Case," the - 97

"Semicolon Court," the 109

Shelby, Anthony B., Associate Justice Supreme Court of

Republic 17

Shearer, James B., Supreme Court clerk 320

Slaughter, George H, Supreme Court clerk 320

Smith, Thomas W., Supreme Court clerk 320

Index 433

PAGE

Stayton, John W., appointed Associate Justice 146

Sketch of 146

Succeeds Chief Justice Willie 183

Death of _ _ 232

Supreme Court op Republic, creation and organization of... 7

Supreme Court of Texas, creation and organization of 28

Supreme Court, number of justices reduced to three 94

Supreme Court Library, junking the 94

Supreme Court, as organized under Constitution of 1869 95

Supreme Court Procedure, proposed reforms in 321

Supreme Court, number of justices reduced to three 129

Supreme Court, changes in jurisdiction and procedure of... 211
Terrell, Alexander "W., Supreme Court Reporter, sketch

of 314

Able member of Texas Bar 315

District judge 315

Lieutenant-Colonel Thirty-fourth Texas Cavalry, Con-
federate army 315

Distinguished statesman and legislator; member, of

State Senate 315

Public services 316

Father of Texas Railroad Commission 316

Last stand for the people 316

Minister to Turkey ; distinguished diplomatic services... 317

"Abdul the Damned" in a new light. 317

The "Hencjack Society," and Armenian massacres 318

The tribute unexcelled - 319

Death of 319

Terrell, George W., Associate Justice of Supreme Court of

Republic 17

Texas, province of, separate judicial circuit comprising jur-
isdiction of Superior Judicial Court of Texas _ 3

Vasquez, Jose, representative of Texas in Congress of

Coahuila and Texas 5

Walker, Alexander S., appointed Associate Justice of the

Supreme Court 183

Resignation of - 185

Supreme Court Reporter - 319

434 Index

PAGE

Walker, Richard S., Supreme Court Reporter, sketch of 311

"Walker, Moses B., succeeds Associate Justice Hamilton 95

Waples vs. Marrast, constitutionality of Presidential Pri-
mary law 299

Webb, James, Supreme Court Reporter 307

Sketch of 307

West, Charles S., Associate Justice Supreme Court 153

Sketch of 153

Resignation of 168

Wheeler, Royall T., Associate Justice Supreme Court of

Republic 17

Sketch of 22

Succeeds Chief Justice Hemphill 55

Death of 80

Wheelook, B. M., Supreme Court Reporter 314

Williams, P. A., succeeds Associate Justice Denman _ 238

Sketch of „„ 238

Resignation of 268

Wilkinson, A. B., Supreme Court Reporter 319

Williamson, R. M., "Three-legged Willie," Associate Jus-
tice Supreme Court of Republic 17

Sketch of 19

Death of 22

Willie, A. H., Associate Justice of Supreme Court of Texas... 82

Sketch of - 85

Chief Justice „ _.. 152

Resignation of 183

Yantis, J. E., Associate Justice of Supreme Court 272

Sketch of _.. 277

'■■ BC M WEj WUa